Attorney General: Honorable David B. Pudlin, Legislative Office Building, 2002-006 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

February 8, 2002

Honorable David B. Pudlin
Majority Leader
House of Representatives
Legislative Office Building
Room 4100
Hartford, CT 06106-1591

Dear Majority Leader Pudlin:

This will acknowledge and reply to your request of November 28, 2001 for an advisory opinion as to whether the State has the authority to consolidate workforce development regions pursuant to the federal Workforce Investment Act and, if so, what criteria must be satisfied before such consolidation is approved. You also ask whether a workforce development board which has demonstrated adequate fiscal capability and achieved satisfactory performance results can be forced to change its current service area or method of operation. We have been informed that the Connecticut Office of Workforce Competitiveness has requested a similar opinion from the United States Secretary of Labor.

For the reasons that follow our opinion is that, pursuant to the plain language of the Workforce Investment Act, the State does not have authority to consolidate such regions or force a workforce development board to change its current service area or method of operation unless the Governor determines that the workforce development board has not demonstrated adequate fiscal capability or achieved satisfactory performance results. Our opinion is in accord with an interpretation of the federal Workforce Investment Act issued by the United States Secretary of Labor to the State of Oklahoma, dated October 30, 2001. The issues addressed in this opinion, however, may be subject to further clarification by the U. S. Secretary of Labor in response to the request for advice made by the Office of Workforce Competitiveness.

29 U.S.C. § 2831(a)(3)(A) of the federal Workforce Investment Act provides that the Governor shall approve any request for temporary designation as a local workforce investment area from any unit of general local government (including a combination of such units) with a population of 200,000 or more that was a service delivery area under the Job Training Partnership Act on the day before August 7, 1998, if the Governor determines that it meets certain criteria. These criteria are, pursuant to 29 U.S.C. §§ 2831(a)(3)(A)(i) and (ii), that the area has performed successfully, in each of the last two years prior to the request for which data are available, in the delivery of services to participants under provisions of the Job Training Partnership Act and has sustained the fiscal integrity of the funds used by the area to carry out activities under those provisions. Pursuant to 29 U.S.C. § 2831(a)(3)(B), a temporary designation shall be for not more than two years, "after which the designation shall be extended until the end of the period covered by the State plan if the Governor determines that, during the temporary designation period, the area substantially met (as defined by the State board) the local performance measures for the local area and sustained the fiscal integrity of the funds used by the area to carry out activities" under the Workforce Investment Act.

In an opinion letter to Governor Frank Keating of Oklahoma, dated October 30, 2001, attached hereto as Exhibit A, Elaine L. Chao, U.S. Secretary of Labor, interpreted the Workforce Investment Act as requiring subsequent designation of a workforce investment area by a Governor after its temporary designation, until the end of the period covered by the State plan, if the area has substantially met the local performance measures for the local area and has sustained the fiscal integrity of the funds used to carry out activities under the Act. An opinion letter of the federal Secretary of Labor interpreting a provision of a federal labor statute administered by the U.S. Department of Labor is entitled to deference if persuasive, and the Secretary of Labor’s opinion here is clearly supported by the plain language of the Workforce Investment Act. See Christensen v. Harris County, ___ U.S. ___, 120 S.Ct. 1655, 1662-63 (2000). Moreover, it is well established that the use of the word "shall" in a statute ordinarily expresses a legislative command. Alabama v. Bozeman, ___ U.S. ___, 121 S.Ct. 2079, 2085 (2001); In re Barbieri, 199 F.3d 616, 619 (2d Cir. 1999). Here the legislative directive to extend the designation of the local area in the federal Act supports interpretation of "shall" as mandatory.

While the provisions of the federal law appear to speak in terms of the Governor’s discretionary determinations of substantially meeting local performance measures and sustaining the fiscal integrity of the funds and the State Board’s discretionary determination of local performance measures, the fact is that the Governor is constrained by the statute to approve subsequent designation of a local area for the remainder of the State plan term unless he has determined that the local area has not substantially met local performance measures and has not sustained fiscal integrity under the narrowly tailored and specific requirements provided in federal law and only modified in part by the State Boards. A State Board has some discretion with respect to local performance measures and may affect policy through the State plan, but it has no power to alter the current service area and the essential method of operation of a local workforce investment board if the local board has substantially met the performance measures the Board has set and sustained the fiscal integrity requirements of the federal Workforce Investment Act.

While the State of Connecticut’s five-year state workforce investment plan, approved by the federal Secretary of Labor, makes reference to the possible consideration of consolidation and change of local areas by the State during the first two years of the plan, the state plan merely reflects the "temporary" nature of the initial two year designation under the federal law. At the conclusion of the two year period the subsequent designation of local areas is controlled by the above federal statutory requirements. The Workforce Investment Act contains provisions for the federal Secretary of Labor’s approval of a State request for waiver of certain statutory requirements of the Act, but statutory or regulatory requirements for the establishment and functions of local areas and local boards, including the subsequent designation of local areas pursuant to 29 U.S.C. §§ 2831 (a)(3)(B), are expressly excepted from waiver. 29 U.S.C. §§ 2939(i)(4)(A)(i), 2942(a)(1). Accordingly, the requirements for subsequent designation of local areas can not be waived by the Secretary of Labor. Moreover, the waiver provisions of the Act appear to require specific waiver requests containing detailed supporting information on the purposes and process for waiver determination and implementation. 29 U.S.C. §§ 2939(i)(4)(B), 2942(b). Although the State's plan, as submitted to the Secretary of Labor, contains general language raising the possibility of changing the designated local areas, the plan does not request a waiver of the federal statutory requirements for final designation nor does it provide the information required by the Act for waiver requests. Since the provisions of the Act relating to the establishment and functions of local areas and local boards could not, in any event, be waived by the Secretary of Labor, the State must comply with those federal statutory requirements. 29 U.S.C. § 2822(c)(1).

Pursuant to the above analysis, it is our conclusion that the State has no authority to consolidate local workforce investment areas or change the current service areas or method of operation unless the Governor makes a determination that a workforce development board has not demonstrated adequate fiscal capability or achieved satisfactory performance results as defined in the statute. Our opinion is, however, subject to a final determination and interpretation of the Workforce Investment Act by the United States Secretary of Labor.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


Richard T. Sponzo
Assistant Attorney General

RB/RTS/dh


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