Attorney General: Senator Jepsen and Representative Pudlin, State Capitol, 2002-008 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

March 4, 2002

The Honorable George Jepsen
Senate Majority Leader
General Assembly
State Capitol
Hartford, CT 06106-1591

The Honorable David Pudlin
House Majority Leader
General Assembly
State Capitol
Hartford, CT 06106-1591

Dear Senator Jepsen and Representative Pudlin:

This letter is in response to your request for a formal legal opinion as to whether Peter Ellef, the current chairman of the Connecticut Resources Recovery Authority ("CRRA""), is serving in that capacity without having received the necessary legislative approval. According to your letter, the Auditors of Public Accounts issued a report to the Governor on July 19, 2001, in which they concluded that Mr. Ellef was improperly serving as chairman of the CRRA without an appointment from the Governor and the approval of the General Assembly, both of which are required by Conn. Gen. Stat. § 22a-261. For the reasons set forth below, we conclude that Mr. Ellef is currently properly authorized to serve as Chairman of the CRRA, but that his continued service in that capacity is subject to the vote of both houses of the General Assembly pursuant to the provisions of Conn. Gen. Stat. § 22a-261(c).

Conn. Gen. Stat. § 22a-261(b) provides that the power of the CRRA shall be vested in a board of directors. Three of the directors are ex-officio members, one of whom is the Commissioner of Economic and Community Development ("DECD"). Conn. Gen. Stat. § 22a-261(b). The statute further provides that "[t]he chairman of the board shall be appointed by the Governor, with the advice and consent of both houses of the General Assembly." Conn. Gen. Stat. § 22a-261(c).

We understand from the Auditors’ July 19, 2001 report that Governor Rowland appointed Mr. Ellef to serve as Chairman of the CRRA Board in February, 1997. At the time, Mr. Ellef was the Commissioner of DECD and thus was on the CRRA Board as an ex-officio member. Conn. Gen. Stat. § 22a-261(b). According to your letter, Mr. Ellef’s appointment was approved by both houses of the General Assembly, as required by Conn. Gen. Stat. § 22a-261(c).

The problem that the Auditors identified arose because Mr. Ellef voluntarily relinquished his position as Commissioner of DECD, and thus relinquished his position as an ex-officio member of the CRRA Board, on October 3, 1997, in order to serve as Co-Chief of Staff for Governor Rowland. Pursuant to Conn. Gen. Stat. § 22a-261(b), the new Commissioner of DECD, James Abromaitis, replaced Mr. Ellef as an ex-officio member of the CRRA Board. Although Mr. Ellef was no longer on the CRRA Board, Mr. Abromaitis designated Mr. Ellef on October 17, 1997, to represent him at CRRA Board meetings as Chairman of the CRRA Board.

According to the Auditors’ report, the CRRA concluded that Mr. Abromaitis could designate Mr. Ellef as a member and Chairman of the CRRA Board pursuant to Conn. Gen. Stat. § 22a-261(i), which authorizes a member of the Board to designate a representative to perform his duties in his absence.1 As the Auditors correctly point out, there are two problems with this argument.

First, the authorization embodied in Conn. Gen. Stat. § 22a-261(i) must be read in conjunction with Conn. Gen. Stat. § 4-9d(a) because both statutes concern the authority of a state officer to designate a representative to serve in his or her stead. It is a well established principle of statutory construction that "[s]tatutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law." Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 461, 704 A.2d 222 (1997).

Section 4-9d(a) states that:

Unless otherwise provided by law, an elected or appointed officer of the executive or judicial branch who, as such officer, is required to serve on a board, commission . . or other body, and is unable or chooses not to so serve, may designate a person to serve on such body in his place, provided (1) an officer may only designate another officer of his agency . . .

Conn. Gen. Stat. § 4-9d(a)(emphasis added). In reconciling the language of section 4-9d(a), which permits an officer to designate only another officer of his agency to serve in his stead, with the language of section 22a-261(i), which permits a CRRA board member to designate a representative, it is significant that the latter provision does not specify that it is intended to supersede the former provision. Whereas another subsection of Conn. Gen. Stat. § 22a-261 begins with the phrase "[n]otwithstanding the provisions of any other law to the contrary," see Conn. Gen. Stat. § 22a-261(n), subsection (i) has no such qualification. Because "[c]ourts may not by construction supply omissions in a statute, or add exceptions merely because it appears to them that good reason exists for adding them," State ex. rel. Kennedy v. Frauwirth, 167 Conn. 165, 168, 355 A.2d 39 (1974), it must be concluded that Conn. Gen. Stat. § 22a-261(i) was not intended to supersede or otherwise create an exception to Conn. Gen. Stat. § 4-9b(a). Accordingly, Mr. Abromaitis is authorized to designate a representative, but may only designate another officer of DECD. Because Mr. Ellef was not an officer of DECD on October 17, 1997, Mr. Abromaitis could not appoint him to serve as his representative on the CRRA Board.

The second problem with the CRRA’s reliance on Conn. Gen. Stat. § 22a-261(i) is that it does not authorize Mr. Abromaitis to appoint Mr. Ellef as Chairman of the CRRA Board. As noted above, Conn. Gen. Stat. § 22a-261(c) requires that the Chairman of the CRRA Board be appointed by the Governor with the advice and consent of both houses of the General Assembly. Mr. Abromaitis, however, was never appointed Chairman by the Governor nor approved by the General Assembly. Thus, even if Mr. Abromaitis could have designated Mr. Ellef to serve as his representative on the Board pursuant to Conn. Gen. Stat. § 22a-261(i), which he could not, he could not have designated him to serve as Chairman because he himself was not Chairman.

The fact that Mr. Ellef had previously been the Chairman of CRRA’s Board does not alter this conclusion. When Mr. Ellef left his position as Commissioner of DECD on October 3, 1997, he thereby relinquished his position on the CRRA Board because he was only on the Board by virtue of the fact that he was the Commissioner of DECD. See Conn. Gen. Stat. § 22a-261(b). When he relinquished his position on the Board, he also, by necessity, relinquished his role as Chairman because the Chairman must be a member of the Board. Thus, on October 17, 1997, when Mr. Abromaitis designated Mr. Ellef to serve as Chairman, Mr. Ellef was not still the Chairman by virtue of his earlier appointment. Instead, he was no different than any other member of the Board (although, for the reasons discussed above, he was not even a proper member of the Board), who, in order to serve as Chairman, had to be appointed by the Governor with the advice and approval of both houses of the General Assembly. Because Mr. Ellef was not so appointed and approved, his designation as Chairman of the CRRA Board was unauthorized.

Although we conclude that Mr. Ellef’s October 17, 1997 appointment as a CRRA Board member and Chairman was unauthorized, we understand that Mr. Ellef was reappointed to the CRRA Board on April 1, 2001, by the Senate Minority Leader, who is authorized by Conn. Gen. Stat. § 22a-261(b) to appoint one member of the Board. Accordingly, Mr. Ellef’s current service as a Board member is now properly authorized.

We further understand that on July 17, 2001, Governor Rowland reappointed Mr. Ellef to serve as Chairman of the CRRA Board pursuant to Conn. Gen. Stat. § 4-19. Section 4-19 provides, in pertinent part, that:

When the General Assembly is not in session and when no other provision has been made for filling any vacancy in an office, appointment to which is made . . . by the Governor with the advice and consent of the General Assembly or either branch thereof, the Governor may fill the same until the sixth Wednesday of the next regular session of the General Assembly, and until a successor is elected or appointed and has qualified.

Because the General Assembly was not in session on July 17, 2001, when Governor Rowland appointed Mr. Ellef, the Governor was permitted by Conn. Gen. Stat. § 4-19 to appoint Mr. Ellef without the advice and consent of both houses of the General Assembly.

Conn. Gen. Stat. § 4-19 further permits Mr. Ellef to continue to serve in his appointed position "until the sixth Wednesday of the next regular session of the General Assembly, and until a successor is . . . appointed and has qualified." Conn. Gen. Stat. § 4-19. In effect, this language appoints Mr. Ellef for a specific term -- "until the sixth Wednesday of the next regular session of the General Assemby" -- and then permits him to continue to hold office thereafter "until a successor is . . . appointed and has qualified." Id. Although nothing in the language of Conn. Gen. Stat. § 4-19 explicitly requires the Governor to seek the General Assembly’s consent to his appointee when the General Assembly reconvenes, Conn. Gen. Stat. § 4-19 must be read in conjunction with Conn. Gen. Stat. § 22a-261(c), which, like Conn. Gen. Stat. § 4-19, concerns the appointment of the CRRA Chairman. As noted above, it is a well-established rule that "[s]tatutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law." Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 461, 704 A.2d 222 (1997).

If Conn. Gen. Stat. § 4-19 is construed to mean that the Governor may appoint a Chairman of the CRRA Board while the General Assembly is not in session and keep that appointee in office indefinitely without ever having to seek the advice and consent of the General Assembly pursuant to Conn. Gen. Stat. § 22a-261(c), then the requirement of Conn. Gen. Stat. § 22a-261(c) that "[t]he chairman of the board shall be appointed by the Governor, with the advice and consent of both houses of the General Assembly" would be rendered meaningless. "It is a basic tenet of statutory construction that the legislature did not intend to enact meaningless provisions." Willoughby v. City of New Haven, 254 Conn. 404, 422 (2000)(internal quotation marks omitted). "[S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant." Id. Accordingly, in giving meaning to both Conn. Gen. Stat. § 4-19 and Conn. Gen. Stat. § 22a-261(c), we must conclude that the legislature did not intend to permit the Governor, by making an appointment pursuant to § 4-19, to circumvent the requirements of Conn. Stat. Gen. § 22a-261(c). Our view is therefore that the Governor properly appointed Mr. Ellef as Chairman of the CRRA Board on July 17, 2001, pursuant to Conn. Gen. Stat. § 4-19, but the appointment is subject to the consent of both houses of the General Assembly now that the General Assembly has reconvened for its next regular session.

The fact that Mr. Ellef has not yet been confirmed by the General Assembly does not render his service illegal. As noted above, a Chairman who is appointed pursuant to Conn. Gen. Stat. § 4-19 is appointed to serve for a specific term -- "until the sixth Wednesday of the next regular session of the General Assembly"-- but may continue to hold office thereafter "until a successor is . . . appointed and has qualified." Conn. Gen. Stat. § 4-19. As explained by the Connecticut Supreme Court, "[t]he purpose of a provision extending a definite term of office until a successor has been qualified is ‘to prevent a public inconvenience arising from the want of a party authorized for the time being to discharge the duties of a public office." Sansone v. Clifford, 219 Conn. 217, 225 (1991). "[O]ne continuing in office under such a provision occupies it de jure." Id. at 226. Thus, Mr. Ellef is authorized to continue to hold office while awaiting confirmation by the General Assembly. Obviously, Mr. Ellef’s continued service as Chairman of the CRRA will depend on the outcome of the legislature’s vote.

In sum, we conclude that Mr. Ellef was properly appointed Chairman of the CRRA and is currently authorized to serve in that capacity until such time as his appointment is voted on by both houses of the General Assembly pursuant to the provisions of Conn. Gen. Stat. § 22a-261(c).

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


Jane R. Rosenberg
Assistant Attorney General

RB/jrr


1Conn. Gen. Stat. § 22a-261(i) states that "[m]embers of the board may designate a representative to perform in their absence their respective duties under this chapter."


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