Attorney General: Ms. Nancy Wyman, State Comptroller, 2000-024 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

August 4, 2000

Ms. Nancy Wyman
State Comptroller
55 Elm Street
Hartford, CT 06106

Ms. Wyman:

You have asked two related questions about the State Employee Campaign for Charitable Giving (the "campaign"), which is an annual campaign "to raise funds from state employees for charitable and public health, welfare, environmental, conservation and services purposes." Conn. Gen. Stat. § 5-262(a)(3). Specifically, you ask whether the State Employee Campaign Committee (the "Committee") may prohibit a federation1 from participating in the campaign if one or more of the federation's member agencies solicits from state employees during the designated campaign period other than through the campaign. You have also asked whether the Committee may require a federation that seeks to participate in the campaign to certify to the Committee that it will refrain from soliciting charitable contributions from state employees during the designated campaign period other than through the campaign.

For the reasons set forth below, we conclude that the Committee has the statutory authority to prohibit a federation from participating in the campaign if one or more of the federation's member agencies solicits from state employees during the designated campaign period other than through the campaign but must, in order to exercise that authority, adopt a regulation so providing. If the Committee subsequently adopts a regulation imposing such a prohibition, which it has not yet done, then it may, as part of the application process, require a federation to certify to the Committee that it will refrain from soliciting charitable contributions from state employees during the designated campaign period other than through the campaign.

The answer to the first question requires an examination of the statutory grant of authority given to the Committee by the legislature in Conn. Gen. Stat. § 5-262(a)(3). The legislature established the Committee to regulate and oversee the campaign. Id. To accomplish that purpose, the Committee is statutorily authorized to select and oversee a "principal combined fund organization" which distributes funds raised during the campaign to participating federations and their member organizations. § 5-262(c). The Committee has been granted the authority to receive and review applications by federations to participate in the campaign and to require, through regulations adopted pursuant to Chapter 54 of the General Statutes ("UAPA"), the information that must be provided in the application. § 5-262(d)(1), (2).

Most importantly, the Committee is statutorily authorized to impose criteria for the approval of applications to participate in the campaign through the adoption of regulations and to grant or deny applications. § 5-262(h) ("The regulations . . . may include criteria for approval of federations applying under this section to participate in the State Employee Campaign"). The statute does not limit the criteria that the Committee may impose pursuant to its regulation-making power. Consequently, the Committee is statutorily empowered to impose eligibility requirements that must be met by federations that seek to participate in the campaign.

In fact, the Committee has exercised this authority and imposed a series of eligibility requirements by adopting Regulations of Connecticut State Agencies, § 5-262-3. For example, the Committee requires, inter alia, that federations seeking to participate in the campaign (1) maintain status as a § 501(c)(3) organization under the Internal Revenue Code, (2) comply with certain auditing requirements, (3) expend no more that 25% of their annual revenue for fund raising and administrative purposes, and (4) comply with various nondiscrimination policies. Id. The Attorney General's Office previously has determined that the imposition of these eligibility requirements are "legally sufficient" within the meaning of Conn. Gen. Stat. § 4-169.

Accordingly, the Committee has statutory authority to impose eligibility requirements for participating federations as long as the eligibility requirements (1) are not inconsistent with the general purpose of the statute, (2) do not violate constitutional law or other statutory provisions, and (3) are promulgated through a regulation adopted pursuant to the procedures set forth in Chapter 54 of the General Statutes. See, e.g., Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals and Health Care, 177 Conn. 356 (1979).

An eligibility requirement that prohibits a federation from soliciting charitable contributions from state employees during the designated campaign period other than through the campaign is not inconsistent with the general purpose of the statute, which, by its terms, provides an efficient, convenient and dependable procedure of soliciting charitable contributions from state employees. As articulated by your letter and attached material, the purpose of the eligibility requirement is to eliminate multiple and confusing charitable solicitations, thereby increasing the efficiency of the campaign while minimizing the disruption to state employees engaged in state business.

The eligibility requirement also does not on its face run afoul of constitutional provisions or other statutes. Although a federation denied participation on account of the prohibition may attempt to raise a free speech challenge to the requirement, we do not believe that such a prohibition, as long as it is applied in a non-discriminatory, viewpoint neutral manner, would violate the first amendment. See Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788 (1985) (rejecting first amendment challenge to eligibility requirements in the Combined Federal Campaign, the federal counterpart to the SEC).

For two reasons, however, the Committee has the power to adopt the eligibility requirement only if it is promulgated through a regulation adopted pursuant to the procedure set forth in the UAPA. First, by its terms, Conn. Gen. Stat. § 5-262(h) requires that the Comptroller adopt regulations if it chooses to impose eligibility criteria. Second, because the Committee is a state agency for purposes of the UAPA,2 any regulation or policy that meets the definition of "regulation" set forth in Conn. Gen. Stat. § Conn. Gen. Stat. § 4-166(13)3 has the force of law only if it is promulgated with the formalities mandated by the UAPA. See, e.g., Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals and Health Care, 177 Conn. 356, 362 (1979).

Our Supreme Court has repeatedly held that if "a rule has a substantial impact on the rights and obligations of parties who may appear before the agency in the future, it is a substantive rule, . . . a ‘regulation’ requiring compliance with the UAPA." Id. Here, the eligibility requirement acts as a rule of general applicability that would have a substantial impact on the rights of the federations that seek to participate in the campaign. Accordingly, if the Committee desires to impose an eligibility requirement that prohibits participation by a federation that solicits charitable contributions from state employees during the designated campaign period other than through the campaign, it may only do so by adopting a regulation.4

You also ask whether the Committee may require a federation that seeks to participate in the campaign to certify to the Committee that it will refrain from soliciting charitable contributions from state employees during the designated campaign period other than through the campaign.5 Because the Committee has the statutory authority to impose the eligibility requirement in the first place, it necessarily follows that the Commission can require that a participating federation certify its compliance with any or all of the eligibility requirements. We stress, however, that the Committee must first adopt a regulation imposing the eligibility requirement. The certification requirement itself does not necessarily have to be contained in the regulation, but you may wish to do so to make clear to participating federations advance notice, prior to initiating the application process, that the certification requirement will be contained in the application.

To sum up, then, the committee is statutorily authorized to require the eligibility requirement, but must first adopt a regulation pursuant to UAPA, and may include a requirement for certification by a federation as part of an application form.

We trust this opinion answers your questions.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Eliot D. Prescott
Assistant Attorney General

RB/edp


1A "federation" is a nonstock corporation, exempt from federal income taxation, that "consists of not less than ten affiliated agencies conducting a single, annual consolidated effort to secure funds for distribution to its member agencies engaged in charitable and public health, welfare, environmental, conservation or service purposes." Conn. Gen. Stat. § 5-262 (a)(1).

2The Committee is an agency within the meaning of the UAPA because it is a "state board, commission, department or officer authorized by law to make regulations or to determine contested cases . . . ." Conn. Gen. Stat. § 4-166(2). The Committee is expressly granted the power by statute to adopt regulations, and the mere fact that the Committee is not officially entitled a ""board, commission, department or officer" is not determinative of whether such organization constitutes a state agency for purposes of the UAPA.

    Walker v. Commissioner

, Department of Income Maintenance, 187 Conn. 458, 476 (1982).

3The section defines "regulation" to mean: "each agency statement of general applicability, without regard to its designation, that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term includes the amendment or repeal of a prior regulation, but does not include (A) statements concerning only the internal management of any agency and not affecting private rights or procedures available to the public, (B) declaratory rulings issued pursuant to section 4-176, or (C) intra-agency or inter-agency memoranda."

4You have also asked whether the Committee might employ other measures short of barring future participation, such as suspending the participation of a particular agency, placing a federation or an agency on probation, or requiring that a federation omit from its application an offending agency. If the Committee adopts a regulation imposing the eligibility requirement, we see no reason why the Committee cannot, in addition to or in lieu of an outright prohibition from the campaign, also impose a less severe administrative sanction such as probation, as long as the regulation so provides.

5The certification provided by you states:

"I certify that I have authority to make this application, that the representatives [sic] made herein are true and correct to the best of my knowledge, and that this federation agrees to abide by the state laws and regulations governing [the campaign] and any rules set down by the [the Committee]. As is noted in the SEC's state regulations, I agree that this Federation, and its member agencies, will not solicit state employees, at or outside the workplace, during the campaign months of September 1 through November 30."

The certification, as drafted, is problematic for two reasons. First, the prohibition on soliciting state employees other than during the campaign period is preceded by the phrase "[a]s noted in the SEC's state regulations." As discussed above, there currently is no such regulation. This problem will, of course, be eliminated once an authorizing regulation is promulgated.

Second, as currently worded, the prohibition does not just apply to workplace solicitations. The federations are required to certify that they will not solicit state employees outside the workplace. The breadth of this prohibition may be problematic. If the Committee adopts a regulation providing authority to require such certification as discussed above, it should consult with this office on the appropriate wording of a proposed certification prepared to implement that regulation.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Eliot D. Prescott
Assistant Attorney General

RB/EDP


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