Attorney General: Jeffrey Garfield, Esq., Elections Enforcement Commission, 2000-020 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

June 30, 2000

Jeffrey Garfield, Esq.
Executive Director
Elections Enforcement Commission
18-20 Trinity Street
Hartford, CT 06106

Dear Mr. Garfield:

You have asked what regulatory authority the Elections Enforcement Commission ("EEC") has with respect to alleged violations of Conn. Gen. Stat. §2-30a(b), which provides in relevant part: "No expenditure of state funds shall be made to influence electors to vote for or against any such proposed constitutional amendment." For the reasons set forth below, we conclude that the EEC has the authority to conduct, upon complaint or its own initiative, an investigation into alleged violations of § 2-30a(b) and to attempt to secure, "by informal methods of conference, conciliation and persuasion," voluntary compliance with the statute. It may also refer evidence of an alleged violation to the Chief State's Attorney and/or Attorney General.

As you know, the legislature has adopted a resolution to repeal section 25 of article fourth of the Connecticut Constitution, thereby abolishing from the our constitution the office of county sheriff.1 Senate Joint Resolution No. 15. This constitutional referendum will be submitted to the electors of Connecticut in November pursuant to the procedures set forth in Conn. Gen. Stat. §2-30a.

Section 2-30a(b) by itself provides no guidance as to which state agency or officer has authority to enforce this provision. Moreover, the statute does not state what remedies, if any, exist with respect to violations of the prohibition on expending public funds to influence voters to vote for or against the question posed by the constitutional referendum. The legislative history of § 2-30a(b) does not illuminate either of these issues.

Thus, a review of other statutes that may bear on this question is necessary. Conn. Gen. Stat. § 9-7b(a)(1) grants the EEC the authority to "make investigations on its own initiative or . . . upon written complaint of any individual, with respect to alleged violations of any provision of the general statutes relating to any election or referendum . . . ." (emphasis added). Accordingly, under the broad terms of this statute, the EEC has the authority to investigate alleged violations of § 2-30a(b), which pertains to constitutional referendums. The power to investigate includes the right to hold hearings, receive oral and documentary evidence and to subpoena witnesses and materials. Conn. Gen. Stat. § 9-7b(a)(1). This section does not, by its terms, authorize the Commission to hold a contested case proceeding under the UAPA or make findings as to whether an alleged violation has been proven.

The more difficult question is what authority does the EEC have with respect to alleged violations of § 2-30a(b) beyond its power to conduct an investigation? Subsection (2) of Conn. Gen. Stat. § 9-7b sets forth the Commission’s civil penalty powers:

(2) To levy a civil penalty not to exceed (A) two thousand dollars per offense against any person the commission finds to be in violation of any provision of chapter 145, part V of chapter 146, part I of chapter 147, chapter 148, section 9-12, subsection (a) of section 9-17, section 9-19b, 9-19e, 9-19g, 9-19h, 9-19i, 9-20, 9-21, 9-23a, 9-23g, 9-23h, 9-23j to 9-23o, inclusive, 9-26, 9-31a, 9-32, 9-35, 9-35b, 9-35c, 9-40a, 9-42, 9-43, 9-50a, 9-56, 9-59, 9-168d, 9-170, 9-171, 9-172, 9-409, 9-410, 9-412, 9-436, 9-436a, 9-453e to 9-453h, inclusive, 9-453k or 9-453o, or (B) two thousand dollars per offense or twice the amount of any improper payment or contribution, whichever is greater, against any person the commission finds to be in violation of any provision of chapter 150. The commission may levy a civil penalty against any person under subparagraph (A) or (B) of this subdivision only after giving the person an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive. . . .

Section 2-30a(b), and Chapter 16 of which § 2-30a(b) is a part, is not among the many chapters and sections over which the EEC has civil penalty authority. Under the doctrine of inclusio unius est exclusio alterius, it would appear that the EEC may not impose a civil penalty for violations of § 2-30a(b).

The only other provisions that appear to give the EEC regulatory authority regarding alleged violations of § 2-30a(b) are subsections (7) and (8) of Conn. Gen. Stat. § 9-7b(a).2 These subsections authorize the EEC to

(7) To refer to the Chief State's Attorney evidence bearing upon violation of any provision of chapters 149 to 153, inclusive, or any other provision of the general statutes pertaining to or relating to any such election, primary or referendum; [and]

(8) To refer to the Attorney General evidence for injunctive relief and any other ancillary equitable relief in the circumstances of subdivision (7) of this section. . . .

Reading the statute as a whole, it appears that the EEC, upon complaint or its own initiative, may conduct an investigation regarding an alleged violation and refer the evidence gathered during the investigation to either the Chief’s State’s Attorney or the Attorney General. Presumably, the Chief State Attorney’s could then consider bringing criminal charges (although §2-30a(b) itself does not criminalize a violation of the statute) and/or the Attorney General could then initiate an action for injunctive and other equitable relief to prevent further violation of §2-30a(b) and to recover the State’s money wrongfully spent under the equitable doctrine of restitution.

Because subsections (7) and (8) provide that the EEC may refer “evidence bearing upon a violation” to the Chief State’s Attorney or Attorney General, it appears that the EEC is limited to an investigatory function with respect to §2-30a(b)3 and cannot actually make findings as to whether a violation of §2-30a(b) has occurred. This reading of the statute is buttressed by the fact that §9-7b(a)(2), in which the EEC is given civil penalty authority, specifically provides that the EEC can impose a civil penalty only after conducting a contested case hearing in accordance with the UAPA. Moreover, the EEC’s power to impose other remedies exists only in subsections where they are given the authority to hold a contested case proceeding under the UAPA and then find a violation. Conn. Gen. Stat. § 9-7b(a)(3)(A-C).4 Section 2-30a(b) does not so provide.

The statutes do expressly grant the EEC power to “attempt to secure voluntary compliance, by informal methods of conference, conciliation and persuasion, with any provision of chapters 149-153, inclusive, or any other provision of the general statutes relating to any such election, primary or referendum.” Conn. Gen. Stat. § 9-7b(a)(5). Accordingly, the EEC may provide guidance and informal advice to interested parties as to what conduct may constitute a violation of § 2-30a(b).

We conclude, then, that the EEC is authorized to investigate alleged violations of § 2-30a(b), and, to attempt to secure "by informal methods of conference, conciliation and persuasion," voluntary compliance with the statute. It may also refer evidence of a violation to the Chief State’s Attorney and/or the Attorney General for further action. If referred to this office, the Attorney General may bring an action for injunctive relief or other ancillary equitable relief and restitution of state funds wrongfully spent.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Eliot D. Prescott
Assistant Attorney General

RB/edp


1The legislature also adopted, and the governor signed, P.A. 00-99, which eliminates the office of county sheriff but is generally effective only if the proposed constitutional amendment is adopted by the electors of the state.

2Conn. Gen. Stat. § 9-369 also governs the procedures for holding a constitutional referendum. This provision, however, does not impose a prohibition similar to that found in §2-30a(b). Section § 9-369b does prohibit the expenditure of public funds “made to influence any person to vote for approval or disapproval of any such proposal or question” and subsection (b) of that statute gives the EEC power to impose fines for its violation. See, e.g., Sweetman v. State Elections Enforcement Commission, 249 Conn. 296 (1999). Section 9-369b, however, by its terms applies only to local questions or proposals. Accordingly, these statutes do not grant the EEC power to adjudicate or impose civil penalties with respect to alleged violations of § 2-30a(b).

3This reading would not limit the EEC’s powers with respect to most of the other substantive provisions of the elections statutes because the EEC is granted power to adjudicate violations of such provisions in § 9-7b(a)(2).

4These remedies include the power to remove campaign treasurers and to order return of improper campaign contributions. Id.


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