Attorney General: Honorable Kevin B. Sullivan, Legislative Office Building, 2000-019 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

May 23, 2000

Honorable Kevin B. Sullivan
President Pro Tempore
Connecticut State Senate
Legislative Office Building
Suite 3300
Hartford, CT 06106

Dear Senator Sullivan:

You have asked for advice regarding the legal consequences of the General Assembly's approval of a particular arbitration award. In your letter of May 10, 2000, you explained that the leadership of the General Assembly is considering calling a special session to approve a recent arbitration award between the State of Connecticut and the Administrative and Residual Union P-5 Bargaining Unit (hereinafter "A&R"), pursuant to Conn. Gen. Stat. 5-278(b). Before the General Assembly will be able to convene to approve the award, however, you anticipate that the State will file in the superior court an application to modify or vacate it. You ask, therefore, what effect the General Assembly's approval of the award may have on the State's legal challenge to it. We conclude that legislative approval of the award will not affect the legal action.

Sections 5-276a and 5-278 of the Connecticut General Statutes, which provide the answer to your question, are part of the State Employee Relations Act, which governs collective bargaining for state employees. See Conn. Gen. Stat. Chap. 68, 5-270 - 5-280. Section 5-276a establishes the process for negotiation and arbitration between the State and the unions which represent state employees. Subsection (e)(6) of that statute describes two occurrences which may prevent an arbitration award from becoming final and enforceable between the parties. It states:

The award of the arbitrator shall be final and binding upon the employer and the designated employee organization unless rejected by the legislature as provided in section 5-278, except that a motion to vacate or modify such award may be filed in the superior court for the judicial district of Hartford within thirty days following receipt of such an award. The court, after hearing, may vacate or modify the award if substantial rights of a party have been prejudiced because such award is: (A) In violation of constitutional provisions; (B) in excess of the statutory authority of the arbitrator; (C) made upon unlawful procedure; (D) affected by other error of law; (E) clearly erroneous in view of the reliable, probative and substantial evidence of the whole record; or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. (Emphasis added):

This statute makes clear that an arbitration award will become effective unless it is rejected by the legislature, or a motion to vacate or modify the award is filed in the superior court. According to the statute, both the legislative review process and the judicial review process proceed independently of each other. Either party to an arbitration award may seek to have the award vacated or modified by the superior court, provided the challenge to the award alleges one or more of the legal deficiencies enumerated in the statute, and provided the motion is filed within thirty days of the receipt of the award.

The procedure for the General Assembly's review of an arbitration award is set forth in Conn. Gen. Stat. 5-278(b). That statute requires, in pertinent part:

[A]ny arbitration award, issued in accordance with section 5-276a, together with a statement setting forth the amount of funds necessary to implement such award, shall be filed by the bargaining representative of the employer with the clerks of the House of Representatives and the Senate within ten days after the date on which such ... award is distributed.... The General Assembly may reject any such award as a whole by two-thirds vote of either house if it determines that there are insufficient funds for full implementation of the award. If rejected, the matter shall be returned to the parties for further bargaining.... If the General Assembly is in session, it shall vote to approve or reject such ... award within thirty days after the date of filing. If the General Assembly is not in session when such ... award is filed, it shall be submitted to the General Assembly within ten days of the first day of the next regular session or special session called for that purpose.

The ... award shall be deemed approved if the General Assembly fails to vote to approve or reject such ... award within thirty days of such filing or submission. The thirty-day period shall not begin or expire unless the General Assembly is in regular session.

The legislative review process described above differs from the judicial review process in two important ways. First, the only ground on which the General Assembly may reject an arbitration award is a fiscal one rather than a legal one; a legislative rejection must be predicated upon "insufficient funds for the implementation of the award". Second, the time frame for the legislative process is entirely different from the judicial one; the legislative review period only runs when the General Assembly is in session, and it commences with either the opening of a legislative session or the filing of the award with the clerks of the two houses, rather than with the parties' receipt of the award.

The differences in the focus and in the time periods for the two types of review show that they are parallel, but distinct. Neither process needs to be complete before the other commences, and validation of an arbitration award by either the legislature or the superior court will not cut short the parallel process. Thus, the General Assembly's review need not be complete before one or both parties may go to court seeking to have the arbitration award modified or vacated.

Because of the independence of the two processes, we advise you that legislative approval of an award will not foreclose a legal challenge to it or alter any remedy that a court may provide. Our conclusion is supported by a superior court decision. In Connecticut v. Connecticut Employees Union, Inc., Local 511, 1996 WL 663846 (Conn. Super., November 7, 1996), the State filed a motion to vacate an arbitration award. The union opposed that motion by arguing that the General Assembly's approval of the award rendered it binding, and therefore, the court had no subject matter jurisdiction over the State's motion to vacate. The court held that the union's argument was "meritless". Relying on the plain language of Conn. Gen. Stat. 5-276a(e)(6), the court concluded "that the plaintiff has statutory authority to bring the application after the legislature approves [the award] and that the court has the authority to review the application." Id. at 4.

This Office will be happy to provide additional advice on this matter, if needed.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Heather J. Wilson
Assistant Attorney General

RB/hjw


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