Attorney General: Senator Sullivan and Jepsen, State Capitol, 2002-021 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

June 28, 2002

Honorable Kevin B. Sullivan
Senate President Pro Tempore
State Capitol
Hartford, CT 06106

Honorable George C. Jepsen
Senate Majority Leader
State Capitol
Hartford, CT 06106

Dear Senator Sullivan and Jepsen:

You have asked for an opinion regarding the provision of 17b-8(a) of the General Statutes, under which the Commissioner of the Department of Social Services ("Commissioner") is required to submit applications for waivers of federal assistance program requirements to the Joint Committee on Appropriations and the Joint Committee on Human Services ("Joint Committees"). As you note, 17b-8(a) provides that the Joint Committees "may advise the Commissioner of their approval, denial or modification, if any" of the waiver application.

Specifically, you ask for an opinion on the following four questions: (1) Do the Joint Committees have the statutory authority under 17b-8(a) to deny the Commissioner's waiver application and to prevent it from being submitted to the federal government for approval? (2) Do the Joint Committees have the statutory authority to modify the application that the Commissioner submits to the federal government? (3) Does the Commissioner have any authority to submit an application to the federal government for a waiver that is inconsistent with a specific state statute authorizing the Commissioner to seek such a waiver? (4) Does Article Second of the Connecticut Constitution, as amended, prevent committees of the General Assembly from reviewing an executive department's application for a federal waiver, pursuant to a legislative authorization, for the purpose of modifying or denying the waiver application? Alternatively, does Article Second generally permit a legislative committee to disapprove the exercise of such a delegation, in whole or in part, so long as it is done pursuant to the specific statutory procedure contained in 17b-8(a)?

The first three questions, which address the legislature's statutory authority to override the Commissioner's waiver decision, call for an interpretation of the statutory language. As with all such questions, "[t]he process of statutory interpretation involves a reasoned search for the intention of the legislature. . . . In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same subject matter." Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 426 (2002) (citation and internal quotation marks omitted).

Section 17b-8(a) of the General Statutes provides:

The Commissioner of Social Services shall submit an application for a federal waiver of any assistance program requirements, except such application pertaining to routine operational issues, to the joint standing committee of the General Assembly having cognizance of matters relating to appropriations and the budgets of state agencies and to the joint standing committee of the General Assembly having cognizance of matters relating to human services prior to the submission of such applications to the federal government. Within thirty days of their receipt of such application, the joint standing committees may advise the commissioner of their approval, denial or modification, if any, of the application.

Conn. Gen. Stat. 17b-8(a) (emphasis added). Additionally, subsection (b) of 17b-8 requires the Commissioner to notify the Joint Committees of a contemplated application when developing the budget for the department for the next fiscal year, and subsection (c) of 17b-8 requires the Commissioner to publish a notice of an application and to receive comments thereon prior to submitting the application to the Joint Committees.

Prior to 1993, the above-highlighted portion of 17b-8(a) (then 17-2k(a)) provided:

Within fifteen days of their receipt of such application, the joint standing committees shall advise the commissioner of their approval, denial or modification, if any of the application.

Conn. Gen. Stat. 17-2k (Rev. to 1993) (emphasis added). In 1993, the General Assembly enacted Public Act 93-221, which amended this statutory provision to substitute the word "may" for the word "shall" with respect to the Joint Committees' advising the Commissioner of their approval, denial or modification.1 In addition, Public Act 93-221 deleted from the statute a process by which, if the two Joint Committees did not concur, a conference committee would be appointed and a provision that if the Joint Committees did not act within thirty days the Commissioner's application would be deemed approved.2 Finally, Public Act 93-221 added the public notice and comment provisions of subsection (c).3

The legislature's substitution of the word "may" for "shall" in 17b-8(a) is, of course, significant. Generally, the word "may" is interpreted as affording discretion or permission. CHRO v. Truelove & Maclean, Inc., 238 Conn. 337, 349 (1996); Seals v. Hickey, 186 Conn. 337, 345 (1982). The word "shall" can have either a mandatory or precatory meaning, depending on its context. Doe v. Statewide Grievance Committee, 240 Conn. 671, 681-82 (1997); Smith v. Zoning Bd. of Appeals, 227 Conn. 71, 92 (1993), cert. denied, 510 U.S. 1164 (1994). It is not entirely clear from the statutory language alone, however, whether the switch from "shall" to "may" was intended to merely afford the Joint Committees discretion on whether to advise the Commissioner of their approval, modification or denial of a waiver application or if it was intended to make the Joint Committee's advice nonbinding on the Commissioner.

The legislative history of Public Act 93-221 is highly instructive. In the floor debates, the bill's sponsor, Representative Pelto, described the then-existing law as "very burdensome," and stated that the amendment sought to "strike a balance of the Legislature and the public's right and need to know, versus the ability of the Commissioner to move quickly and take advantage of federal changes." H. Rep. Proc. at 133 (May 26, 1993). In response to a question from Representative Ward about whether the amendment intended to give the Joint Committees a veto power over waiver applications, Representative Pelto clarified that the Joint Committee advice as to approval, modification or denial constituted only a recommendation to the Commissioner and that the Commissioner retained the final authority over whether to make the waiver application to the federal government. Id. at 134-36.

Moreover, the interpretation that Public Act 93-221 was intended to make 17b-8(a) advisory only is consistent with the deletion of the provisions regarding the conference committee procedure in the case of nonconcurrence by the Joint Committees and the automatic approval in lieu of action by the Joint Committees within thirty days. Because the Joint Committee's advice is only a recommendation, there is no longer a need for a process to resolve a difference of views by the Joint Committees or the provision that deemed approval after the lapse of a time period. In sum, the amendment in Public Act 93-221 transformed the process in 17b-8(a) from a committee approval process to one involving notification as reflected in the new public notice and comment requirements of subsection (c) and recommendation in order to better serve the stated goal of eliminating burdensome mechanisms and affording the Commissioner greater flexibility.

Thus, in response to your first two questions, it is clear that the legislature's intent, reflected in particular in the legislative history of Public Act 93-221, was that the Joint Committees do not have the authority under 17b-8(a) to deny a waiver application and to prevent the Commissioner from submitting the application to the federal government. For the same reasons, it is also our opinion that the Joint Committees do not have the statutory authority under 17b-8(a) to compel the Commissioner to modify a waiver application.

The third statutory question whether the Commissioner has the authority to submit a waiver application for a particular subject matter that is inconsistent with specific legislation authorizing the Commissioner to seek a waiver for that subject matter requires additional analysis. The Commissioner's authority is defined by statute, and the exercise of that authority cannot exceed what the statutory source of his authority provides. In re Baby Z., 247 Conn. 474, 519, 724 A.2d 1035 (1999); Hall v. Gilbert & Bennett Mfg. Co., Inc., 241 Conn. 282, 291, 695 A.2d 1051 (1997). The legislature has circumscribed the Commissioner's authority to seek waivers by requiring the Commissioner to submit waiver applications to the Joint Committees for review. Moreover, in certain instances, the legislature has directed or authorized the Commissioner to seek waivers with regard to specific matters. E.g., Conn. Public Act 01-2, 4 (June Sess.) (requiring Commissioner to seek waiver relating to penalty periods for transfer of assets for less than fair market value); Conn. Gen. Stat. 17b-278b (authorizing Commissioner to seek waiver relating to costs for breast and cervical cancer services). Therefore, the Commissioner lacks any authority to seek waivers that are inconsistent with express legislative mandates. To conclude otherwise would render the legislative enactments nullities, which, of course, is always to be avoided. Stewart v. Tunxis Serv. Center, 237 Conn. 71, 79, A.2d (1996).

Your fourth question asks whether the legislature may constitutionally delegate to a legislative committee the authority to modify or deny a waiver application an authority that previously existed prior to the 1993 amendment. Thus, the following discussion assumes a statutory scheme, such as that which existed prior to 1993, under which the Joint Committees could in fact deny a waiver application and thereby preclude the Commissioner from submitting such application to the federal government. Of course, when evaluating the constitutionality of a statute, we must "indulge every presumption in favor of the statute's constitutionality" and its unconstitutionality must be established beyond a reasonable doubt. State v. Floyd, 217 Conn. 73, 79 (1991).

Our Supreme Court has not directly addressed the question of the exercise of a "veto"-type power by a legislative committee over the actions of an executive branch official. See Maloney v. Pac, 183 Conn. 313, 324-25 (1981) (court did not decide whether legislative veto of purported regulations violated separations of powers). The U.S. Supreme Court has found analogous congressional enactments to violate the separation of powers doctrine intrinsic to the Federal Constitution. INS v. Chadha, 462 U.S. 919 (1983) (ruling unconstitutional a legislative "veto" by one house of Congress of executive branch decision regarding deportation of alien). Although federal precedents often serve as useful guides, they do not control the interpretation of the Connecticut Constitution. Daly v. DelPonte, 225 Conn. 499, 513 (1993). Indeed, our Supreme Court has on several occasions upheld the constitutionality of certain measures of which the U.S. Supreme Court has struck down the federal analog. Compare University of Connecticut Chapter AAUP v. Governor, 200 Conn. 386 (1986) (rejecting separation of powers challenge to statute permitting Governor to reduce budgetary allotments) with Clinton v. New York, 524 U.S. 417 (1998) (holding that presidential budgetary line-item veto violated separation of powers doctrine); Seymour v. Elections Enforcement Commission, 255 Conn. 78 (2000), cert. denied, 533 U.S. 951 (2001) (upholding legislative appointments of election commission officials) with Buckley v. Valeo, 424 U.S. 1 (1976) (invalidating legislative appointment of election commission officials).

Article Second of the Connecticut Constitution provides: "The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another." As articulated by our Supreme Court, the separation of powers doctrine embodied in Article Second of the State Constitution permits greater flexibility than under the Federal Constitution. See State v. Darden, 171 Conn. 677, 679 (1976); Adams v. Rubinow, 157 Conn. 150, 155 (1968). Our Supreme Court has stated that "[t]he separation of powers doctrine serves a dual function: it limits the exercise of power within each branch, yet insures the independent exercise of that power. Nevertheless, it cannot be rigidly applied always to render mutually exclusive the roles of each branch of government. As we have recognized, the great functions of government are not divided in any such way that all acts of the nature of the function of one department can never be exercised by another department; such a division is impracticable, and if carried out would result in the paralysis of government. Executive, legislative and judicial powers, of necessity overlap each other, and cover many acts which are in their nature common to more than one department." Massameno v. Statewide Grievance Committee, 234 Conn. 539, 552 (1995). Thus, the Court has "long recognized that under appropriate circumstances powers may be shared by the three branches of government in this state." Seymour, 255 Conn. at 107.

This is a significantly different formulation of the separation of powers than that articulated by the U.S. Supreme Court for the Federal Constitution. The Federal Constitution "sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial, to assure as nearly as possible, that each branch would confine itself to its assigned responsibility . . ." with "the powers delegated to the three Branches [being] functionally identifiable." INS v. Chadha, 462 U.S. at 951; see also Bowsher v. Synar, 478 U.S. 714, 727 (1986). A principal purpose of the federal separation of powers doctrine is to ensure against "the encroachment or aggrandizement of one branch at the expense of the other." Buckley v. Valeo, 424 U.S. 1, 122 (1976). As the Connecticut Constitution contemplates a less rigid approach, federal precedents offer little guidance, and an independent analysis under state constitutional standards must be engaged.

A violation of the separation of powers doctrine under the Connecticut Constitution will be found only if (1) one branch has assumed power that lies exclusively under the control of another branch; or (2) the action of one branch significantly interferes with the orderly conduct of the essential functions of another branch. Seymour, 255 Conn. at 107-08; Massameno, 234 Conn. at 552-53. Of particular relevance to evaluating the question posed here is an understanding of the significance of obtaining waivers for assistance program requirements from the federal government. Aside from the various policy implications of seeking a waiver for particular assistance program requirements, waivers could have substantial budgetary implications in expanding or contracting the State's expenditures for assistance programs. Although the detailed decision-making underlying a waiver application is typical of the sort of executive branch activity that is legislatively delegated to an executive official or agency, the appropriation power is one that is quintessentially legislative. See Eielson v. Parker, 179 Conn. 552, 560 (1980); Bridgeport v. Agonstinelli, 163 Conn. 537, 544 (1972).

The Supreme Court's decision in University of Connecticut AAUP v. Governor, 200 Conn. 386 (1986), provides some insight. In that case, the legislature had enacted statutory provisions enabling the governor to reduce by up to five percent budgetary allotments under certain circumstances. In upholding the governor's authority to reduce budgetary allotments, the Court expressly recognized the constitutionally permissible sharing of powers relating to appropriations and budgetary matters. Id. at 395-96. While "the legislative power necessarily encompasses the 'power to appropriate funds to finance the operation of the state and its programs,'" id. at 395 (quoting Eielson, 179 Conn. at 560), "the executive branch is most capable of having detailed and contemporaneous knowledge regarding finances." Id. at 397. Thus, the statute did not delegate a "strictly legislative function" to the Governor and thus did not violate the separation of powers. Id. at 396-97.

The power to seek waiver applications cannot be described as an exclusively executive function. The Commissioner's authority to seek waivers, after all, is legislatively delegated authority, and the General Assembly could restrict or control waiver applications far more broadly if it chose to. Moreover, a statutory scheme that authorized the Joint Committees to reject or modify a waiver application would not "significantly interfere" with the Commissioner's essential functions. Although a purpose of Public Act 93-221 was to ease the burdens on the Commissioner with regard to waiver applications, the imposition of such burdens would not rise to the level of constitutionally significant interference. Because of the significant budgetary and other policy implications of waivers, such a statutory scheme would represent the sort of shared and overlapping authority that is contemplated under the Connecticut Constitution.4

In conclusion, a statute authorizing the Joint Committees to deny or require a modification of a waiver application by the Commissioner would not violate Article Second of the Connecticut Constitution.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL


1The amendment also increased from fifteen to thirty days the time in which the Joint Committees could "advise" the Commissioner.

2 The provisions deleted by Public Act 93-221 provided:

If such committees do not concur, the committee chairman shall appoint a committee on conference which shall be comprised of three members from each joint standing committee. At least one member from each joint standing committee shall be a member of the minority party. The report of the committee on conference shall be made to each joint standing committee, which shall vote to accept or reject the report. The report of the committee on conference may not be amended. If a joint standing committee rejects the report of the committee on conference, the commissioner's application shall be deemed approved. If the joint standing committees accept the report, the committee having cognizance of matters relating to appropriations and the budgets of state agencies shall advise the commissioner of their approval, denial or modifications, if any of his application provided if the joint standing committees do not act within thirty days the application shall be deemed approved.

3Subsection (c) of provides:

Prior to submission of an application for a waiver from federal law to the General Assembly under subsection (a) of this section, the Commissioner of Social Services shall publish a notice that the commissioner intends to seek such a waiver in the Connecticut Law Journal, along with a summary of the provisions of the waiver application and the manner in which individuals may submit comments. The commissioner shall allow fifteen days for comments on the written waiver application prior to the submission of the application for a waiver to the General Assembly under subsection (a) of this section and shall include all written comments with the waiver application in the submission to the General Assembly.

Conn. Gen. Stat. 17b-8(c).

4 In 1982, Article Second was amended to authorize the legislature to delegate regulatory authority to the executive department, reserving to the legislature or any legislative committee the authority to disapprove administrative regulations of an executive department agency. Conn. Const. amend. art. XVIII. This amendment was in response to a superior court decision that held that invalidation of an agency regulation by a legislative committee violated the separation of powers doctrine. The Supreme Court set aside that ruling on an alternative ground without reaching the constitutional issue. Maloney v. Pac, 183 Conn. 313, 324-25 (1981). The purpose of the constitutional amendment was to reaffirm the constitutionality of legislative regulations review committee. H. Rep. Proc., at 28 (April 30, 1981). No intent can be implied from this amendment to preclude the sort of legislative involvement contemplated here, where the power is not exclusively executive in nature and the legislative involvement is not a significant interference with the executive's essential functions.


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