Attorney General: Honorable Amalia Vazquez Bzdyra, Chairperson of the Commission on Human Rights and Opportunities, 2002-020 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

June 28, 2002

Honorable Amalia Vazquez Bzdyra
Chairperson of the Commission on Human
  Rights and Opportunities
21 Grand Street
Hartford, CT 06106

Dear Commissioner Bzdyra:

This is in response to the letter drafted on your behalf by Commission Counsel Murphy dated May 24, 2002, as amended and supplemented by the letter dated June 14, 2002, in which you request our opinion as to the validity of two recent appointments to vacancies on the Commission on Human Rights and Opportunities (hereinafter CHRO). Your letter of June 14, 2002, and the attachments thereto, make it clear that on June 5, 2002, the Governor appointed Mr. Edward Mambruno to fill a vacancy which arose because of a resignation, and that on June 13, 2002, the Speaker of the House appointed Ms. Esther Armmand to fill a vacancy which also arose because of a resignation. Neither of these two appointees have yet taken office. Both of these letters of appointment referenced and relied upon Conn. Gen. Stat. § 46a-52 as legal authority. That statute requires, in pertinent part, that “such persons shall be appointed with the advice and consent of both houses of the General Assembly”. Therefore, you ask whether these new appointees may take office immediately, even though their names cannot yet be submitted to either house of the General Assembly, since its regular session ended on May 8, 2002.1 For the reasons that follow, it is our opinion that both of these appointments are valid and effective immediately.

Conn. Gen. Stat. § 46a-52(a) provides as follows:

(a) The commission shall consist of nine persons. On and after October 1, 2000, such persons shall be appointed with the advice and consent of both houses of the General Assembly. (1) On or before July 15, 1990, the Governor shall appoint five members of the commission, three of whom shall serve for terms of five years and two of whom shall serve for terms of three years. Upon the expiration of such terms, and thereafter, the Governor shall appoint either two or three members, as appropriate, to serve for terms of five years. On or before July 14, 1990, the president pro tempore of the Senate, the minority leader of the Senate, the speaker of the House of Representatives and the minority leader of the House of Representatives shall each appoint one member to serve for a term of three years. Upon the expiration of such terms, and thereafter, members so appointed shall serve for terms of three years. (2) If any vacancy occurs, the appointing authority making the initial appointment shall appoint a person to serve for the remainder of the unexpired term. (Emphasis added).

The Governor appointed Mr. Edward Mambruno to fill the vacancy created by the resignation of Ms. Vivian Blackford, who was appointed by the Governor on July 15, 1998, for a five-year term expiring on July 14, 2003.

This appointment is consistent with the foregoing language in Conn. Gen. Stat. § 46a-52(a)(2), which authorizes the appointing authority who made the initial appointment (the Governor in this case) to appoint a person to fill the vacancy. This appointment is also consistent with, and further authorized by, Conn. Gen. Stat. § 4-19, which provides as follows:

Sec. 4-19. Appointments to fill vacancies. 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 General Assembly or either branch thereof, whether or not on nomination by the Governor, or 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. The Governor may fill any vacancy in any office to which he has power of appointment, provided the Governor may not appoint a person who was nominated for an appointment subject to the advice and consent of the General Assembly or either branch thereof and whose nomination was rejected by the General Assembly or either branch thereof during the last preceding regular session of the General Assembly to the same or similar vacancy unless the General Assembly is in regular session.

In this instance, the General Assembly was not in regular session when the vacancy appointment was made. The nomination had not been made earlier, nor was it ever rejected by the General Assembly. Also, the Governor's letter appointed Mr. Mambruno "to serve until the sixth Wednesday of the next session of the General Assembly, or until a successor is appointed and has qualified, whichever is longer…" Therefore, the appointment of Mr. Mambruno is completely consistent with the provisions of both Conn. Gen. Stat. § 4-19 and Conn. Gen. Stat. § 46a-52(a), and it is effective immediately.

It should be noted, however, that both Conn. Gen. Stat. § 46a-52(a) and § 4-19 do require the Governor to submit Mr. Mambruno's name to the General Assembly for confirmation at its next regular session. As we have opined previously, there can be no question about the validity of the appointment until the General Assembly acts on it at its next regular session. See Opinion of the Attorney General to Hon. Claire Jacobs, State Elections Commission, Nov. 3, 1976, p. 2.

On June 13, 2002, the Speaker of the House appointed Ms. Esther Armmand to fill the vacancy created by the resignation of Ms. Jane Glover, who was appointed by the Speaker on July 15, 1999 to a three-year term expiring on July 14, 2002. Also on June 13, 2002, the Speaker appointed Ms. Armmand to a full three-year term beginning on July 15, 2002, and expiring on July 14, 2005. We will address each of these two appointments separately.

The appointment of Ms. Armmand to fill the vacancy is authorized by the language in Conn. Gen. Stat. § 46a-52(a)(2), which provides that the appointing authority who made the initial appointment (in this case the Speaker had appointed Ms. Glover) "shall appoint a person to serve for the remainder of the unexpired term". This vacancy appointment is also authorized by Conn. Gen. Stat. § 2-44a, which provides as follows:

Sec. 2-44a. Notice of appointments by president pro tempore, speaker or minority leaders. Vacancies; notice by chairman. (a) Whenever the president pro tempore of the Senate or the speaker of the House of Representatives, or a minority leader of the Senate or House of Representatives, in accordance with the provisions of any public or special act or resolution of the General Assembly, makes an appointment other than to a standing committee of the General Assembly, he shall forthwith, in writing, notify the appointee of such appointment and of his term of office and shall forward a copy thereof to the Governor and the Secretary of the State, together with a statement of the authority under which such appointment was made. Each such officer shall fill any vacancy occurring in any office for which he has the original power of appointment.

Of course, even appointments to fill vacancies on the Commission are subject to confirmation by the General Assembly during its regular session. Conn. Gen. Stat. § 46a-52(a). However, since this vacancy appointment was made after the General Assembly adjourned, and since this term expires on July 14, 2002 (long before the next regular session of the General Assembly begins), this appointment is effective immediately and shall be valid until it expires on July 14, 2002. As the Connecticut Supreme Court has long stated, the very purpose of a vacancy appointment is to avoid "the public inconvenience which must result if vacancies should occur and continue until the next stated session of the General Assembly". State ex rel. Eberle v. Clark, 87 Conn. 537, 551 (1913).

The appointment of Ms. Armmand by the Speaker to a full three-year term is authorized by the specific language in Conn. Gen. Stat. § 46a-52(a)(1), which states that the Speaker shall "appoint one member to serve for a term of three years". Just as we opined infra with respect to Mr. Mambruno's appointment by the Governor, this appointment of Ms. Armmand must also be submitted to the General Assembly at its next regular session, because Conn. Gen. Stat. § 46a-52(a) requires that all CHRO appointees "shall be appointed with the advice and consent of both houses of the General Assembly".

Until the General Assembly acts on her appointment at its next regular session, Ms. Armmand will have the power to act and to hold office. We so opined with respect to the Speaker's appointment of a member of the State Elections Commission when the General Assembly was not in session:

It is well recognized that where the law so provides an official exercising the power of appointment must obtain proper confirmation in order for such appointment to be void. 81 C.J.S. States, § 84, p. 466; 67 C.J.S. Officers, § 42, p. 312; F. Mechem, A Treatise On The Law Of Offices And Officers, § 134, p. 67 (1890).

Where the confirming body, however, is not in session, as was the case here on September 22, 1978, appointees have, at least in the absence of a statutory provision to the contrary, power to act and to hold office, subject to subsequent confirmation. See 81A C.J.S. States, § 84, p. 466, supra.

Opinion of the Attorney General to Ms. Dalita Soto, State Elections Commission, Sept. 28, 1979, p. 2-3. Therefore, since there is no statutory provision to the contrary, Ms. Armmand's appointment to the three-year term becomes effective on July 15, 2002, and continues until the General Assembly acts on her confirmation.

You also asked what would happen if the General Assembly fails to act on these appointments by the end of the next regular session. However, since this is a hypothetical question at this time, we need not address it. Also, as you pointed out in your request for advice, our Opinion dated September 28, 1979, does provide some guidance on this. We will revisit this issue if and when the need arises, upon your request.

We trust that this answers your inquiry.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


David M. Teed
Assistant Attorney General


1The Legislature had convened a special session on May 9, 2002, which had not ended as of June 13, 2002. The special session, however, is expressly limited by House Joint Resolution No. 222 to considering and enacting legislation relating to the biennial state budget and related matters. Nowhere in the Joint Resolution did the Legislature authorize itself to give its advice and consent to appointments. We recently concluded in a formal opinion issued to Governor Rowland on June 12, 2002, that the existence of the limited special session did not deprive the Governor of the authority to make interim appointments under § 4-19. The same reasoning applies here.


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