Attorney General: Honorable Mitchell R. Harris, State Marshall Commission, 2001-028 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

December 20, 2001

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

Dear Mr. Harris:

In your letter dated October 9, 2001 you requested an opinion of this office as to whether the State Marshal Commission has the authority to institute a policy and procedure for the service of restraining orders by state marshals. The policy establishes a state wide system of on-call state marshals to be present at a designated courthouse twice a day on a mandatory rotation basis to receive restraining orders to be served and to discuss the service procedure with the individuals obtaining the orders. No compensation is provided for the state marshal’s presence at the courthouse, although the ordinary fee would still be charged for service of the order. We conclude that the State Marshal Commission is authorized by statute to implement this policy and procedure, and that payment by the state is not required by state or federal law.

I.  Legislation and Implementing Policy and Procedure

Your question arises in the context of the recent substantial legislative changes reforming the former sheriff’s system. 2000 Conn. Public Acts No. 00-99 created the position of state marshal and authorized state marshals to provide legal execution and service of process. Conn. Gen. Stat. § 6-38a. This legislation also created the State Marshal Commission to fill vacancies in state marshal positions, to establish professional standards including training requirements and to establish minimum fees for the execution and service of process. Conn. Gen. Stat. § 6-38b.

Public Act No. 01-9 of the 2001 June Special Session imposed an additional requirement upon the State Marshal Commission: to "be responsible for the equitable assignment of restraining orders to the state marshals in each county and [to] ensure that such restraining orders are served expeditiously." Conn. Gen. Stat. § 6-38b(g).

To fulfill this responsibility, the State Marshal Commission has adopted Policy and Implementing Procedure 01-01 for the assignment of restraining orders. The policy was developed through a cooperative agreement with the Judicial Department. The policy states that

[t]he timely processing of restraining orders is of great concern to many parties: the applicant, the State Marshal Commission, the State Marshals and the Judicial system. To that end it is the policy of the State Marshals Commission that restraining orders will be handled through a statewide system of on-call State Marshals. Every State Marshal that has been appointed and authorized to serve process by the State Marshal Commission will participate in this program.

The implementing procedure of this policy calls for a three step process for the serving of restraining orders. An individual must apply for the issuance of a restraining order, the court must issue the order and transfer it to the state marshal, and the state marshal must make execution and return of service to the court. The court clerk’s office advises each applicant that a state marshal will be present in the courthouse from 12:30 to 1:00 and from 4:30 to closing Monday through Friday to meet with the applicant, to take the court order and to discuss the procedure for serving the court order. Each applicant is also told that the use of the on-call state marshal is not mandatory. A list of state marshals authorized to make service is provided. Each applicant is also given two forms intended to inform the applicant about the process and to provide information from the applicant to the state marshal so that service can be made.

The implementing procedure states the responsibility of the state marshals for compliance.

The on-call State Marshal shall be responsible for the following:

a) complying with the Standard Rotation System for the Service of Restraining Orders...

b) ensuring that the applicant is made aware of the procedure for service of a restraining order,

c) ensuring the service of the restraining order in a timely manner.

d) providing a copy of each restraining order and the ‘Police Department Confirmation Sheet’... to the local police department immediately after service to the respondent.

e) ensuring the proper return of service to the Court Clerk’s office.

The standard rotation system for the service of restraining orders referenced in the implementing procedure states that

[a]ll State Marshals will be assigned to serve restraining orders through a rotation schedule within their jurisdiction.

1) All State marshals will be assigned to the rotation schedule.

If a State Marshal is unable to comply with their assignment, it is their responsibility to obtain coverage from another Marshal who will be available to serve the orders.

2) The State Marshal who has obtained a substitute for his/her assignment MUST verbally notify both the Court Clerk’s office liaison and the Administrative Office of the State Marshal Commission forty-eight hours in advance of any change. Written notification must be made to the Administrative Office within one week subsequent to the date of the change stating the reason the change was necessary.

3) The duration of the assignment will be one Week. The week will run from Wednesday through Tuesday.

4) There will be two State Marshals assigned for the week to be responsible for a 12:30 to 1:00 and a 4:30 until closing appearance at the courthouse. A marshal responsible for the 12:30 to 1:00 p.m. appearance may contact the Court Clerk’s office designee sufficiently in advance of the reporting time to determine whether any restraining orders have been issued to determine whether their presence is required. A Marshal responsible for the 4:30 closing appearance must report to the courthouse to cover the late issuance of any orders. Marshals will be required to remain at the courthouse if they are notified that an order remains to be issued.

5) The State Marshal is ‘on-call’ 24 hours a day/7 days a week for the duration of the assignment.

6) The Administrative Office of the State Marshal Commission will issue the rotation schedule and will coordinate the distribution and monitoring of the schedule with the Court Clerk’s office liaisons.

Your request for our opinion was prompted by a letter the Commission received from an attorney representing a state marshal, which claimed that the Commission is without authority to compel state marshals to be present in the courthouse at any time without providing fair financial remuneration to them for the services rendered. You have asked for our opinion on this issue.

II. Authority to Implement the Procedure

The Commission’s statutory authority to implement the procedure in question is clear from the terms of § 6-38b, as amended by Public Act No. 01-9, Section 8, of the June Special Session, which provides in relevant part: "[t]he commission shall be responsible for the equitable assignment of restraining orders to the state marshals in each county and ensure that such restraining orders are served expeditiously." The procedure which the commission has adopted to implement the provisions of Public Act No. 01-9 is a standard with which state marshals must comply. The Commission has the authority to establish professional standards under Conn. Gen. Stat. § 6-38b(f).

The terms of the restraining order policy are clearly consistent with the legislative intent expressed in Public Act 01-9, codified at Conn. Gen. Stat. § 6-38b(g). As required by the Act, the procedure established by the Commission ensures that all restraining orders are served promptly by having them picked up from court twice a day, and that the assignment of the work to the state marshals is equitable by spreading the assignments among all the state marshals on a rotating basis.

Clearly, then, the Commission has the authority to establish this procedure, and the state marshals are required to follow it or be subject to removal under the terms of Conn. Gen. Stat. § 6-38b(g), as amended by Public Act 01-9.

III. State and Federal Law

You further ask whether the failure of the state to provide remuneration to state marshals for the period they are required to be at the courthouse while awaiting the assignment of restraining orders violates any state or federal law. We conclude that it does not.

     A. State Law

The terms of the General Statutes address claims for the payment of wages by the state. Conn. Gen. Stat. § 31-71a defines the state as an employer subject to the state’s wage laws in connection with its employees.1 The terms of the General Statutes make clear that state marshals are independent contractors and therefore are not the beneficiaries of the state’s wage laws. A state marshal has the authority to "provide legal execution and service of process as an independent contractor compensated on a fee for service basis." Conn. Gen. Stat. § 6-38a(a)(emphasis added). The lack of state employee status is emphasized at Conn. Gen. Stat. § 6-38b(h) which states that "no person may be a state marshal and a state employee at the same time." The status of state employee and independent contractor are mutually exclusive. Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 698 (1995). The objective in determining employee status is to discern legislative intent through the language of the statutes. Id.

The terms of the General Statutes do not require payment by the state due to compliance with the implementing procedure. Rather, they contemplate payment by the individual for whom service is made. Had the General Assembly intended state marshals to be paid by the state in regard to serving restraining orders it could have so provided. See Federal Aviation Administration v. Administrator, 196 Conn. 546, 551 (1985).

We conclude that state wage laws do not apply to state marshals.

     B. Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) states that its wage and hour provisions apply only to "employers." 29 U.S.C. § 203(e). The term "employee" is defined as "any individual employed by an employer." Id. To employ means "to suffer or permit to work." 29 U.S.C. § 203(g). Although as discussed above, state marshals are denominated "independent contractors" by statute; see Conn. Gen. Stat. § 6-38a(a); the FLSA does not define the term for use in the Act.

Federal courts for purposes of the Act determine whether a worker is an employee or an independent contractor by the application of factors termed the "economic realities test."

The factors of this test were recited in a 1996 attorney general opinion as follows:

  1. the extent to which the services performed are an integral part of the employer’s business;
  2. the extent of the worker’s investment in equipment and facilities;
  3. the nature and degree of control exercised by the ‘employer’;
  4. The ‘employee’s’ opportunity for profit and loss;
  5. the amount of initiative, skill, judgment or foresight required for the success of the claimed independent enterprise; and
  6. the permanency and duration of the relationship between the worker and the ‘employer.’

Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947); Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947)(Social Security Act); Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961) (FLSA); Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748 (9th Cir. 1979) (FLSA); Brock v. Lauritzen, 624 F.Supp. 966 (E.D. Wisc. 1985)(FLSA).

96 Conn. Op. Atty. Gen. (April 19, 1996), 1996 Conn. Ag. Lexis 16. An additional factor cited by courts is whether the worker is dependent upon the alleged employer for his continued employment in that line of business. Halferty v. Pulse Drug Co., 821 F.2d 261 (5th Cir. 1987). The totality of the circumstances governs in making independent contractor determinations. No one factor is determinative. Courts examine the "circumstances of the whole activity" or relationship. Rutherford Food Corp., 331 U.S. at 730.

Applying these factors to the present issue we conclude that state marshals are independent contractors under the FLSA.

(1) The extent to which the services performed are an integral part of the alleged employer’s business

Services performed by the state marshals in providing legal execution and service of process are not an integral part of the state’s business. State marshal services, with the exception of when the state is in need of service of process, are not performed for the state. The economic reality is that those in need of service of process are those for whom the state marshals work. It is the duty of the state marshal to make service of all civil process delivered to him. Conn. Gen. Stat. § 6-32.

(2) The extent of the worker’s investment in equipment and facilities

State marshals make investment in their own material and equipment in varying degrees, according to information provided by your administrative director. An automobile is a practical necessity, as is record keeping equipment such as filing cabinets. The use of computers, fax machines, and cell phones is common. Some state marshals have office space with clerical staffs. All necessary equipment is provided by the state marshals. The state provides no equipment, and gives state marshals only a badge and identification card.

(3) The degree and nature of control exercised by the alleged employer

The employment relationship determination under the FLSA turns upon the degree of the right to control the manner in which the work is to be performed. Donovan v. Dialamerica Marketing, Inc., 757 F.2d 1376, 1382 (3rd Cir. 1985).

The General Statutes do not give the state the right to control the work of a state marshal. The General Statutes set standards as to the end result, not as to how the work of a state marshal is to be done. Service of process is to be executed promptly. Conn. Gen. Stat. § 6-32. Restraining orders are to be served expeditiously. Conn. Gen. Stat. § 6-38b(g).

The policy and implementing procedure of the State Marshal Commission also do not demonstrate the right to control. State marshals are not directed by the State Marshal Commission as to how to serve restraining orders or how to discuss the procedure for making service with the person for whom service is made. They are told to be available in the courthouse and on call periodically in order to fulfill their duty to serve restraining orders expeditiously.

The absence of control is similar to that for attorneys. State marshals must appear in court and be on call to fulfill their duties. Attorneys must appear in court as officers of the court to fulfill their duties to their clients. Conn. Gen. Stat. § 51-84. Both state marshals and attorneys work for private individuals by whom they are paid. Each state marshal determines his own means and methods of making service of process. Each attorney determines how to best represent his client.

The state’s right to remove a state marshal from office for cause after a hearing is consistent with the absence of the right to control. Conn. Gen. Stat. § 6-38b(j). A state marshal in such an instance is not being discharged by the state from his work, but prohibited from continuing in his office for the protection of the public.

(4) The worker’s opportunity for profit or loss

State marshals have the potential for financial profit or loss. They are paid by their private clients for whom they make service, not by the state. No payment is made to them if service of process is unsuccessful. They expend money in terms of travel, record keeping and other expenses related to their work. They must purchase personal liability insurance. Conn. Gen. Stat. § 6-30a. They are liable for double the amount of damages to an aggrieved party for failing promptly to execute and return service of process or for making a false return. Conn. Gen. Stat. § 6-32. They are liable to pay interest at the rate of five per cent per month on money collected that is not paid to a person authorized to receive it in the required time. Conn. Gen. Stat. § 6-35. The manner in which they organize, operate and assume the risk of being a state marshal determines whether and to what extent they are financially successful. Profit is the gain realized from a business over and above its expenditures. Brock v. Lauritzen, 624 F. Supp. 966 (E.D. Wisc. 1985), aff’d, 835 F.2d 1529 (7th Cir., 1988), cert. denied, 488 U.S. 898 (1988), reh. denied, 488 U.S. 987 (1988).

(5) The amount of initiative, skill, judgment or foresight required for the success of the claimed independent enterprise

This factor is indicative of independent contractor status, although to a lesser degree than most of the others. State marshals need initiative, skill, judgment and foresight in order to be successful, and must organize, operate and assume the risk of their work. Their proficiency in making service of process will determine the success and profitability of their operation. Courts consider specialized skills to be relevant in determining whether workers are employees or independent contractors. Bonnetts v. Arctic Express, 7 F. Supp. 2d 977, 981 (SD Ohio 1998).

(6) The permanency and duration of the relationship between the worker and the alleged employer

State marshals have permanency with respect to their office, but not as state employees. State marshals can be removed from their offices only for cause after due notice and a hearing. Conn. Gen. Stat. § 6-38b(j). Yet, the right to hold office does not impart employment status. It only indicates that a state marshal is fulfilling his obligations as an office holder. A fifty year member of the bar, licensed to practice law in the state, does not acquire employment status with the state as a result of compliance with the statutory requirements for the practice of law.

(7) Dependency on the alleged employer for continued employment in that line of business

State marshals are dependent upon the members of the public for whom they make service of process for further work in their field. Good work will presumably lead to further assignments by those who retained their services and due to word of mouth recommendations. The proper test of economic dependence is whether the worker is dependent on the alleged employer for his continued employment in that line of business. Halferty v. Pulse Drug Co., 821 F.2d 261 (5th Cir. 1987). The touchstone of economic reality in analyzing possible employment relationships for purposes of the FLSA is dependency. Weisel v. Singapore Joint Venture, Inc., 602 F.2d 1185 (5th Cir. 1979).

The totality of the circumstances demonstrates that state marshals are not state employees for the purpose of the FLSA. They work for the public and are subject to the requirements of state law in order to maintain their offices as state marshals. In our view, there is no valid argument to be made that the state is subject to the FLSA as an employer of state marshals, and is therefore not required to pay them for coming to the courthouse for a short period on a rotating basis to pick up restraining orders and explaining service procedures to the person retaining them to make service of the order.

     C. The Thirteenth and Fourteenth Amendments to the United States Constitution

In his letter to the Commission, the private attorney complaining about the new procedure maintains that the Commission's policy and procedure for restraining orders violate the Thirteenth and Fourteenth Amendments of the United States Constitution. The former prohibits involuntary servitude within any state. The latter prohibits any state from depriving any person of life, liberty or property without due process of law and from denying any person within its jurisdiction the equal protection of the laws. We conclude that there are no such constitutional violations.

The state marshals have no reasonable claim as to a Thirteenth Amendment violation. A state marshal holds office voluntarily. No one is required to fulfill the duties of a state marshal against his or her will. Any state marshal who considers the conditions of office to be onerous can resign.

Similarly, we see no equal protection violation. An equal protection claim involves a two step analysis. A statutory classification is justified only by a compelling state interest if it impinges upon an inherently suspect class or affects a fundamental personal right. State Management Association of Connecticut v. O'Neill, 204 Conn. 746, 750 (1987). Otherwise a statute is consistent with equal protection rights if it bears a reasonable relation to a legitimate state interest. Id.

The strict standard of a compelling state interest is not applicable. State marshals are not an inherently suspect class. A claimed right to payment in return for fulfilling the conditions of office is not a fundamental constitutional right. Such a right is not explicitly or implicitly guaranteed by the Constitution. Such rights include First Amendment rights explicitly provided by the Constitution, the right to travel interstate found implicit in the Constitution and the right to vote. Id., at 751. The key to determining whether a right is fundamental is assessing whether it is explicitly or implicitly guaranteed by the Constitution. Id.

The State Marshal Commission's policy and procedure satisfy the equal protection standard in that they bear a reasonable relation to a legitimate state interest. The state's interest is that restraining orders be assigned equitably among the state marshals and that they be served expeditiously for the protection of the public. The policy and procedure promote the state's interest by dividing the responsibility for the service of restraining orders among the state marshals and by setting standards for expeditious service. The requirement that state marshals come to the courthouse on a rotating basis for one half hour to pick up the orders is a necessary incident to service for which the marshals are paid their fees by their clients, and does not further require payment by the state.

In like fashion, the state marshals do not have a valid claim as to a deprivation of due process. The analysis here is the same as with the equal protection issue. The State Marshal Commission's policy and provision accomplish a legitimate purpose in a fair and reasonable way. The legitimate purpose is to provide for the expeditious service of restraining orders. The equitable assignment of the restraining orders among the state marshals and the requirements to appear periodically at the courthouse to pick up orders for service and discuss the procedures for serving them, to make timely service, to notify the police and to ensure return of service to the court are fair and reasonable ways to achieve that legitimate purpose. In the absence of a violation of a fundamental right, a party bears a heavy burden of proving that a challenged policy has no reasonable relationship to any legitimate state purpose and that the party has suffered a specific injury as a result of the policy's enforcement in order to succeed on a substantive due process claim. Campbell v. Board of Education of the Town of New Milford, 193 Conn. 93, 104-05 (1984).

We conclude that the State Marshal Commission is authorized to establish and implement its policy and procedure for the service of restraining orders by state marshals. Payment to the state marshals for compliance with the State Marshal Commission policy and procedure is not required by either state or federal law.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Thadd A. Gnocchi
Assistant Attorney General

RB/TAG/dh
Attachment


1The federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., to be discussed below, also applies to the state as an employer. 29 U.S.C. § 203(e). Congress has the authority to impose the FLSA on state government. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). The terms of the General Statutes may nevertheless apply in spite of federal coverage if state law provisions are more beneficial to the worker than those of the FLSA. Davenport Taxi, Inc. v. State Labor Commissioner, 164 Conn. 233, 240 (1973.


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