Attorney General: Mr. Charles P. Watras, Bradley International Airport Commission, 2000-005 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

February 17, 2000

Mr. Charles P. Watras
Chairman
Bradley International Airport Commission
Terminal B
Windsor Locks, CT 06096

Dear Mr. Watras:

This is in response to your letter dated January 19, 2000, in which you request our opinion on whether the Department of Transportation ("DOT") has the authority to enter into major contracts regarding development at Bradley International Airport ("BIA") when the Bradley International Airport Commission ("Commission") believes that DOT has failed to fully cooperate with the Commission in accordance with the provisions of subsection (b) of Section 15-101s of the Connecticut General Statutes. This statutory provision provides that: "[t]he Commissioner of Transportation shall (1) submit quarterly reports to the commission on the implementation of the airport master plan and any other information the commission deems necessary and (2) cooperate with the commission in carrying out its functions, including allowing the commission reasonable access to the facilities and resources of the Department of Transportation." In our opinion, the BIA Commission has the specific statutory authority to ensure the Department of Transportation's cooperation with the Commission but the Legislature did not give the BIA Commission any authority to negate the contracting power which it specifically conferred on the Commissioner of Transportation.

There are two basic reasons for arriving at the foregoing conclusion. First, the statutes that create the BIA Commission and set forth the DOT's responsibilities relative to the Commission make no provision for nullifying or otherwise restricting the DOT's operational authority over BIA, including its contracting authority. Second, the statutes that delegate contracting authority to the DOT with respect to development at State owned airports, including BIA, confer no decision making function on the Commission.

I

In addressing the question of statutory interpretation posed in your January 19th letter, we are guided by certain well-established principles of law.

"It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent." All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 194, 567 A.2d 1156 (1989). See also, Department of Public Works v. ECAP Construction Co., 250 Conn. 553, 558, 737 A.2d 398 (1999) ("The process of statutory interpretation involves a reasoned search for the intention of the legislature . . ."). "The starting point in any case involving a question of statutory construction must be the language used by the legislature." Nickel Mine Brook Associates v. Joseph E. Sakal. P.C., 217 Conn. 361, 364, 585 A.2d 1210 (1991). "When the words of a statute are plain and unambiguous, we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature." Norwich v. Housing Authority, 216 Conn. 112, 117-18, 579 A.2d 50 (1990). "When we are confronted, however, with ambiguity in a statute, we seek to ascertain the actual intent by looking to the words of the statute itself; . . . the legislative history and circumstances surrounding the enactment of the statute; . . . and the purpose the statute is to serve." Id. (citations omitted). See also, West Hartford Interfaith Coalition, Inc., v. Town Council, 228 Conn. 498, 507-08, 636 A.2d 1342 (1994). Moreover, it is an elementary rule of construction that statutes should be considered as a whole, with a view toward reconciling their separate parts in order to render a reasonable overall interpretation. Peck v. Jacquemin, 196 Conn. 53, 63, 491 A.2d 1043 (1985). "Legislative intent is not found in an isolated sentence or word of a statute but must be sought in the entirety of an enactment, its parts reconciled and made operative as far as possible." Tufaro v. Pepperidge Farm, Inc., 24 Conn. App. 234, 238, 587 A.2d 1044 (1991). Finally, "[i]n construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result." State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983); see also, Schreck v. City of Stamford, 250 Conn. 592, 596-97, 737 A.2d 916 (1999).

With these guiding principles of statutory interpretation in mind, we turn to the statutory provisions germane to your inquiry.

II

The DOT has been given responsibility for all aspects of the planning, development, maintenance and improvement of transportation in the State of Connecticut. See, Conn. Gen. Stat.  13b-3. The DOT is headed by the Commissioner of Transportation who has been given the general powers, duties and responsibilities, inter alia, "[t]o study the operations of existing airports, to determine the need for changes in such airports and the need for future airports, and to formulate and implement plans and programs to improve aviation facilities and services". Conn. Gen. Stat. 13b-4(7). The Commissioner of the DOT is also "[t]o provide for the planning and construction of any capital improvements and the remodeling, alteration, repair or enlargement of any real asset that may be required for the development and operation of a safe, efficient system of highways, mass transit, marine and aviation transportation . . .". Conn. Gen. Stat. 13b-4(12).

In the field of aviation, the Legislature has delegated to the Commissioner of DOT the entire charge, control, operation and management of all airports owned by the State, including the authority to lease or grant any interest in a State owned airport. See, Conn. Gen. Stat. 13b-42. Among the State owned airports falling under the jurisdiction of the Commissioner of DOT is Bradley International Airport; see, Chapter 266a of the Connecticut General Statutes; and, with certain exceptions not applicable to the question raised in your letter, "the Commissioner of Transportation is authorized to fix, revise, change and collect rates, rents, fees and charges for the use of and for the services furnished or to be furnished by the facilities of Bradley International Airport and to contract with any persons, partnership, association or corporation, or other body, public or private, in respect thereof . . . " Conn. Gen. Stat.  15-101m(a).

In short, the Commissioner of DOT has been given broad authority to operate and manage BIA, including the authority to contract for the construction of capital improvements that may be required for the development of the airport.

On the other hand, the BIA Commission was created by the Legislature in 1982 pursuant to Public Act No. 82-316 to provide assistance in connection with development at BIA:

There is created within the Department of Transportation, for administrative purposes only, the Bradley International Airport Commission to (1) oversee the development of Bradley International Airport in an expeditious and efficient manner according to the airport master plan, (2) develop policies in coordination with the Department of Transportation to ensure that airport development meets the social, economic and environmental needs and concerns of the surrounding communities and the region as a whole and the economic needs of the state, and (3) provide a forum for addressing the issues, needs and concerns of the users of the airport and the general public.

1982 Conn. Pub. Acts No. 82-316, Section 1(a); now Conn. Gen. Stat. 15-101r(a). In addition, the Commission is to "review and comment on all plans for the development of Bradley International Airport in accordance with the criteria and standards set forth in section 15-101r and make any other recommendations regarding the development of the airport as it deems appropriate...". Conn. Gen. Stat. 15-101s(a). To assist the BIA Commission in fulfilling its responsibilities the legislature directed the Commissioner of Transportation to provide information to and cooperate with the Commission. Conn. Gen. Stat. Section 15-101s(b).

The question you raise is what happens if, in the opinion of the BIA Commission, the Commissioner of DOT fails to comply with his statutory responsibility to submit information to and cooperate with the BIA Commission? More specifically, does such a failure affect the Commissioner's ability to enter into contracts in connection with airport development?

Certainly, our hope and expectation is that the Commissioner of Transportation has complied with his information and cooperation responsibilities under Section 15-101s(b) and will continue to do so. However, if the BIA Commission is dissatisfied with the sufficiency of the information supplied by the Department of Transportation or the level of cooperation from the Commissioner, the Legislature has provided the BIA Commission with a specific and potentially effective remedy in such circumstances. Pursuant to Section 15-101s(a)(2) the BIA Commission has the "power to compel the attendance and testimony of witnesses by subpoena and capias . . . require the production of any books, papers or other documents and administer oaths to witnesses in any matter under its examination." Notably, in defining and delineating very explicitly the Commissioner's powers, the Legislature did not give the Commission authority to veto or change contracting decisions made by the Commissioner of Transportation, even if the Commissioner failed to inform or cooperate with the BIA Commission to its satisfaction.

While Section 15-101s(b) states that the Commissioner of DOT "shall" submit information requested by the Commission and otherwise cooperate with the Commission in carrying out its functions, the word "shall" as used in Section 15-101s(b) is directory, not mandatory. "In determining whether the use of the word 'shall' is mandatory or directory, the test is whether the prescribed mode of action is of the essence of the thing to be accomplished." Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 760, 699 A.2d 81 (1997), quoting from Eichman v. J & J Building Co., 216 Conn. 443, 582 A.2d 182 (1990).

If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. . . . Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply. . . . A reliable guide in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision.

Lauer v. Zoning Commission of the Town of Redding, 246 Conn. 251, 262, 716 A.2d 840 (1998). (Internal quotation marks and citations omitted.)

Here the obligations imposed on DOT in Section 15-101s are not "accompanied by language that expressly invalidates any action taken after noncompliance with the provision." If the Legislature had intended that an alleged failure to comply with the provisions of Section 15-101s(b) should act as a bar prohibiting DOT from awarding a contract, or nullifying such a contract, the Legislature presumably would have said so. Certainly, such a drastic consequence, if intended by the Legislature, should be evidenced by some express language in the statutes governing the DOT's contracting authority. Compare, for example, Conn. Gen. Stat.  4a-65, which provides that "[w]hen any state agency purchases or contracts for any supplies, materials, equipment or contractual services contrary to the provisions of this chapter [Chapter 58] or the regulations promulgated in pursuance thereof, such order or contract shall be void and of no effect." There is no such expression of legislative intent relative to Section 15-101s(b). "A legislative intention not expressed in some appropriate manner has no legal existence." Johnson v. Manson, 196 Conn. 309, 315, 493 A.2d 846 (1985).

The legislative history of the BIA Commission's statutory powers supports the view that the legislature specifically did not give the BIA Commission a veto over the actions of the DOT with respect to airport development. During the legislative debates it was noted by Representative Pier, who presented Substitute House Bill No. 5970, which became P.A. 82-316, that "[i]t was never the intention of the members of the [Bradley Airport Advisory] Commission or the Transportation Committee that we would create another level of bureaucracy in the development of the airport...." 25 H.R. Proc., Pt. 15, 1982 Sess., p.5011. Accordingly, the original bill presented to the Legislature was amended to delete language which would have empowered the BIA Commission to review and "approve" all plans for development at BIA and substituted language limiting the Commission's role to a review and "comment" function, see Schedule "B" to Substitute House Bill No. 5970; 25 H.R. Proc., Pt. 15, 1982 Sess., pp. 5010-5012.

Based on the plain language and legislative history of the statutes concerning the Bradley International Airport, we conclude that DOT's duties under Section 15-101s(b) are directory in nature and not mandatory, and that alleged noncompliance with those duties does not affect DOT's authority to award contracts involving development at BIA. Just as "[c]ourts cannot, by construction, read into statutes provisions which are not clearly stated," Houston v. Warden, 169 Conn. 247, 251, 363 A.2d 131 (1975), so too this Office is "not permitted to supply a statutory omission merely because we feel there is good reason to do so." Cotti v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975).

III

With certain noted exceptions, the Legislature has delegated to the Commissioner of Transportation the "entire charge, control, operation and management of any airport or restricted landing area owned or leased by the state. . . ". Conn. Gen. Stat. Sec. 13b-42(a). In exercising this statutory authority, the Legislature has also empowered the Commissioner to, inter alia, sell or lease or grant an interest in any airport owned by the state, Conn. Gen. Stat. 13b-42(b); but the Commissioner's power to do so is not unqualified. Rather, any contract to sell or lease airport property is subject to the "approval" of the Secretary of the Office of Policy and Management ("OPM"), the State Properties Review Board ("SPRB") and the Attorney General. Id. Noticeably absent from the list of State entities who have an "approval" function with respect to airport contracting is the BIA Commission. Indeed a review of applicable aviation statutes, and the statutes dealing specifically with BIA fails to disclose any expressed linkage between the DOT's contracting authority and the BIA Commission.

"When a statute provides that a thing shall be done in a certain way, it carries with it an implied prohibition against doing that thing in a different way." State v. White, 204 Conn. 410, 423-424, 528 A.2d 811 (1987). Here, Section 13b-42 sets forth the procedures governing airport contracting and the State entities (i.e., DOT Commissioner, OPM, SPRB and Attorney General) involved in the contracting process. The Legislature did not include the BIA Commission in that process. On the contrary, the Legislature specifically excluded the Commission from an "approval" role in connection with the development of BIA. See, discussion supra, p. 4.

If an assertion by the BIA Commission that DOT has failed to comply with the requirements of Section 15-101s(b) were sufficient to prevent DOT from exercising its contracting authority under Section 13b-42, then in effect the Commission would be assuming an "approval" function, something that the Legislature clearly did not provide in Section 13b-42.

IV

In closing, we wish to emphasize that this office has made no conclusions on whether or not the DOT has in fact complied with its obligations under Section 15-101s(b). Rather, our opinion is limited to the issue of whether noncompliance triggers some restriction on the DOT's authority to enter into contracts involving development at Bradley International Airport.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Cornelius F. Tuohy
Assistant Attorney General


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