Attorney General: Mitchell R. Harris, State Marshal Commission, 2001-025 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

December 6, 2001

Mitchell R. Harris
Chairman
State Marshal Commission
765 Asylum Avenue
Hartford, CT 06105

Dear Chairman Harris:

You have requested a formal opinion of the Attorney General as to "whether a former Deputy Sheriff, former High Sheriff or a State Marshal who resigns from his appointment may continue to collect wage executions they had served while acting in their official capacities." As discussed below, the answer to your inquiry is no.

The provisions of Conn. Gen. Stat. §6-38a give State Marshals "authority to provide legal execution and service of process ...". Prior to the enactment of Public Act 00-99, High Sheriffs and Deputy Sheriffs had such authority.1

Wage executions are governed by Conn. Gen. Stat. §52-361a. Subsection (d) of that statute provides:

(d) Levy. The levying officer shall levy on all earnings which are due or become due to the judgment debtor to the extent specified in the wage execution, until the judgment is satisfied, or the execution is modified or set aside, by serving the employer with two copies of the wage execution, the required notice of rights and the claim forms. On receipt thereof, the employer shall forthwith deliver a copy thereof to the judgment debtor, or mail such copy postage prepaid to the judgment debtor at his last-known address. On service of the execution on the employer, the execution shall automatically be stayed for a period of twenty days and shall thereafter immediately become a lien and continuing levy on such portion of the judgment debtor’s earnings as is specified therein, provided if a claim is filed in accordance with subsection (d) of section 52-361b within twenty days of such service on the employer, the stay shall continue until determination of the claim.

The term "levying officer" means "a state marshal or constable acting within his geographical jurisdiction or in IV-D cases, any investigator employed by the Commissioner of Social Services." Conn. Gen. Stat. §52-350a(12). Public Act 00-99, §114 amended Conn. Gen. Stat. §52-350a(12) by substituting state marshal for "sheriff" and "deputy sheriff." Thus, sheriffs and deputy sheriffs no longer are deemed "levying officers" for the purpose of Conn. Gen. Stat. §52-361a(d). Further, anyone who was a "state marshal" who no longer holds such appointment is not a "levying officer" for wage execution purposes. Since the statutory authority to execute on wages is limited to officers identified in Conn. Gen. Stat. §52-350a(12), sheriffs, deputy sheriffs and former state marshals have no authority to exercise the powers enumerated in Conn. Gen. Stat. §52-361a except insofar as they initiated a wage execution prior to the expiration of their term of office and such execution is not completed.

Conn. Gen. Stat. §52-55 provides:

Sec. 52-55. When completion of service by another officer allowable. (a) If an officer to whom any process is directed dies or is removed from office, or becomes physically incapacitated, or because of other good and sufficient reason is unable to complete service of the process, after he has commenced to serve it but before completing service, any other proper officer may complete service.

(b) If the term of office of any officer to whom any process is directed and who has commenced to serve it expires before the completion of service, he may nevertheless proceed to complete service in the same manner and with the same effect as if he still remained in office.

Since your question asks whether a former High Sheriff, Deputy Sheriff, or State Marshal who resigns may continue to collect wage executions, the provisions of subsection (b) above would not apply since that subsection refers to an officer whose term of office has expired. Since a resignation is a form of voluntary removal from office, it is our opinion that subsection (a) is applicable. Thus, "any other proper officer" should complete the execution, not the officer who has removed himself from office.

While it is clear that "any proper officer" may complete service of process that another officer or State Marshal commenced, in those situations outlined above, the statutes do not specifically determine who gets to choose which particular proper officer or proper officers may be assigned particular process to complete. Since the statutes do not provide a clear answer, this is an area where the State Marshal Commission may wish to seek legislative clarification. We offer the following observations. First, the decision of which particular proper officer to employ is one that is typically made in Connecticut by the party who needs a serving officer or such party’s duly authorized representative (typically the party’s attorney) in the first instance. If that proper officer dies and the party who first arranged for the use of a serving officer (in this case the judgment creditor or attorney) selects another proper officer to complete the service, that action should generally be sufficient. This could well mean that different serving officers will take over different accounts depending on the choices made by the parties. It also may not address the needs of pro se parties who are not sufficiently familiar with the legal system to know how to go about handling this situation.

There is also the question of whether the State Marshal Commission has the authority to select the proper officers to complete service when an officer resigns, if the party has not done so. There is no clear legislative enactment answering these questions. The Commission does have certain authority in the situation where a State Marshal has passed away or become disabled, which is set forth in Conn. Gen. Stat. §6-38e.2 In that case, the Commission is required to appoint a qualified individual to oversee and audit the records and accounts of the deceased or disabled State Marshal and render an accounting. It appears that this authority is designed both to get an accounting and to ensure that no one absconds with funds held by the deceased State Marshal. The authority to appoint a qualified individual to oversee accounts may be read broadly to enable the Commission itself to appoint a proper officer to complete service on the deceased or disabled State Marshal’s open executions, if the party has not chosen another State Marshal to do so. Likewise, in the absence of clear direction, the authority of the Commission could be read to grant such authority in other cases such as those resulting in disability, removal and resignation. Ideally, this ambiguity should be resolved by the legislature and we strongly recommend that the Commission seek clarification of this question through legislation. However, in the absence of any other selection of a proper officer to complete service of any executions, and to ensure that all executions are served in a timely manner, we believe the authority given to the State Marshal Commission in this section is sufficient to make the selection.

We are aware from discussions with your staff that there is concern regarding Conn. Gen. Stat. §6-38d. The question is whether that statute implies that only the officer who initiated the wage execution may continue collecting wage executions they initiated. Conn. Gen. Stat. §6-38d provides:

No state marshal shall knowingly bill for, or receive fees for, work that such state marshal did not actually perform.

Under Conn. Gen. Stat. §52-261(a)(6) the officer serving an execution also levies a 10% fee. It is clear from the statute that the fee is only due "when the money is actually collected and paid over ...". Accordingly, under the fee statute the officer serving an execution would be entitled only to the fees associated with actual collections that he administered. Any lawful fees associated with collections administered by any other proper officer who completed service of the execution would belong to the officer who completes service. The provisions of Conn. Gen. Stat. §6-38d would not bar the latter officer from collecting fees since they would be associated with work actually performed by the officer who took over service of the process.

We conclude that the answer to your question of whether High Sheriffs, Deputy Sheriffs or State Marshals who have resigned may continue to collect on wage executions they initiated, must be answered in the negative.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Michael J. Lanoue
Assistant Attorney General

RB/MJL/bjo


1Public Act 00-99 repealed Conn. Gen. Stat. §6-31 which authorized High Sheriffs to execute all lawful process directed to them. That Act amended Conn. Gen. Stat. §6-32, which had authorized Deputy Sheriffs to receive each process directed to them and to execute such process. Public Act 00-99, §§129, 153, 154.

2"The State Marshal Commission shall periodically review and audit the records and accounts of the state marshals. Upon the death or disability of a state marshal, the commission shall appoint a qualified individual to oversee and audit the records and accounts of such state marshal and render an accounting to the commission." Conn. Gen. Stat. §6-38e.


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