Attorney General: Senator Sullivan, Senator Looney, Representatives Lyons and Amann, State Capitol, 2003-012 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

July 16, 2003


The Honorable Kevin Sullivan
President Pro Tempore
General Assembly
State Capitol
Hartford, CT 06106-1591

The Honorable Martin M. Looney
Senate Majority Leader
General Assembly
State Capitol
Hartford, CT 06106-1591

The Honorable Moira K. Lyons
Speaker of the House
General Assembly
State Capitol
Hartford, CT 06106-1591

The Honorable James Amann
House Majority Leader
General Assembly
State Capitol
Hartford, CT 06106-1591

Dear Senator Sullivan, Senator Looney, Representative Lyons, and Representative Amann:

You have asked for a formal legal opinion concerning the General Assembly's authority to enact a continuing resolution to appropriate funds for the operation of the state government in the absence of a state budget. As you note in your July 11, 2003 letter, the General Assembly passed two biennial budget bills earlier this year, both of which were vetoed by Governor Rowland. Given the lack of a budget for the new fiscal year beginning July 1, 2003, the General Assembly passed a two week continuing resolution or temporary appropriations measure on June 30, 2003. House Bill 6801. Governor Rowland vetoed House Bill 6801, stating in his veto message that "[t]here is no authority in the Constitution or statute for such a document. Its legitimacy is, therefore, highly questionable."

On July 1, 2003, in order to continue government operations in the absence of a budget, the Governor issued Executive Order No. 29, which directed that "such sums as may be necessary to carry out this order shall be expended from the treasury." On July 7, 2003, the Governor issued a second, similar order, Executive Order No. 29A, governing the period from July 7 through July 14, 2003, followed by a similar Order on July 14, 2003. To date, no budget for the fiscal year beginning July 1, 2003, has been approved by the General Assembly and signed by the Governor.

Referring to both the Governor's veto of House bill 6801 and an opinion I issued in 1991 concerning the authority of the legislature to pass a continuing resolution to provide for the continuation of government services in the absence of an approved budget, you have asked the following two questions arising from the current budget situation:

(1) The Governor stated in his veto message dated July 1, 2003 (regarding House Bill 6801): "There is no authority in the Constitution or statute for such a document. Its legitimacy is, therefore, highly questionable." Is there authority for the General Assembly to enact such a measure?

(2) In your Opinion Number 91-019 you stated "The most prudent approach and the one I strongly advise be taken in order to avoid fiscal confusion and uncertainty is to adopt a continuing resolution." The fact pattern surrounding the issuance of the Governor's Executive Order Numbers 29 and 29A is similar but not identical to the fact patterns which gave rise to your advice and opinions as set forth in Opinion No. 91-019 and 91-033. Would you provide us with your opinion as to the legality and advisability of the two-week temporary appropriations measure enacted by the General Assembly on June 30, 2003 (House Bill 6801), which was subsequently vetoed by the Governor?

For the reasons set forth below, we conclude that the General Assembly has constitutional authority to adopt a temporary appropriations measure, commonly known as a continuing resolution. We further conclude that the Governor had the authority to veto the resolution, as he can constitutional do to such legislative measure. In the absence of an override, the bill has no legal effect, and the Governor has the authority to issue an Executive Order to maintain essential and necessary state services.

As you note in your letter, this office issued two formal opinions in 1991 addressing the options that were available to the General Assembly and the Governor in a similar budget crisis, when no budget was passed by the legislature and signed by the Governor before the start of the 1991-1992 fiscal year. See 1991 Op. Conn. Atty Gen. 91-019 (June 7, 1991) and 1991 Op. Conn. Atty Gen. 91-033 (November 4, 1991). In Opinion No. 91-019, we concluded, based on State v. Staub, 61 Conn. 553 (1892), that "essential services of government must continue and must continue to be paid for in the absence of a budget" and that "the costs associated with statutory duties imposed on State officials or costs required to be incurred by statute will also have to be incurred and paid." Id. at 7. We recognized that practical problems would inevitably arise in applying this standard on an ad hoc basis and that selecting expenses actually allowable could cause uncertainty and confusion in the operation and delivery of state services. Accordingly, we advised the General Assembly to adopt a continuing resolution to appropriate funds temporarily until a permanent budget could be adopted.

In recommending that the General Assembly approve a continuing resolution, we recognized that there is no statute expressly authorizing such action, but concluded that no such specific authorization was needed because the legislature has plenary constitutional authority to appropriate State funds. In support of this conclusion, we quoted Eielson v. Parker, 179 Conn. 552 (1980), in which the Connecticut Supreme Court concluded that:

The fact that our constitution contains no provision expressly conferring upon the general assembly the power to make appropriations is of no moment. Such legislative power is readily inferable from article fourth, 22, concerning the duties of the state treasurer, who "shall receive all monies belonging to the state, and disburse the same only as he may be directed by law." Cases in other jurisdictions construing similar directives have consistently found such directives to require "an authority from the legislature, given at the proper time, and in legal form, to the proper officers, to apply sums of money out of that which may be in the treasury in a given year, to specified objects or demands against the state." Shattuck v. Kincaid, 31 Ore. 379, 386, 49 P. 758 (1897); State ex. rel. Noonan v. King, 108 Tenn. 271, 276, 67 S.W. 812 (1902); State ex. re. Post-Intelligencer Publishing Co. v. Lindsley, 3 Wash. 125, 126, 27 P. 1019 (1891). It has been generally recognized for two hundred years that legislative power encompasses fiscal power.

Eielson v. Parker, 179 Conn. 552, 561 (1980)(emphasis added). Eielson is still good law. Accordingly, we conclude that the legislative power of the General Assembly includes the authority to adopt a continuing resolution, such as House Bill 6801, to appropriate funds on a temporary basis pending the adoption of a state budget.

In your second question you asked for our opinion as to "the legality and advisability of the two-week temporary appropriations measure enacted on June 30, 2003 (House Bill 6801), which was vetoed by the Governor." In our 1991 opinion discussed above, we concluded that a continuing resolution "should be presented to the Governor pursuant to the State Constitution, Article Fourth, 15, to avoid any question as to its binding effect." 1991 Op. Conn. Atty Gen. 91-019, p. 10 (June 7, 1991). Accordingly, each of the several continuing resolutions that were adopted in 1991 was presented to the Governor and signed. See 1991 Conn. Sp. Act. No. 91-1 (June Special Session)(appropriating funds for the two-week period from July 1 to July 14, 1991); 1991 Conn. Sp. Act. No. 91-2 (June Special Session)(appropriating funds for the two-week period from July 1 to July 14, 1991); 1991 Conn. Sp. Act. No. 91-3 (June Special Session)(appropriating funds for the two-week period from July 15 to July 28, 1991); 1991 Conn. Sp. Act. No. 91-4 (June Special Session)(appropriating funds for the two-week period from July 29 to August 4, 1991); and 1991 Conn. Sp. Act. No. 91-5 (June Special Session)(appropriating funds for the two-week period from August 5 to August 18, 1991).

The temporary appropriations measure adopted this June, like the 1991 measures, was both legal and advisable, and was constitutional in light of the authority and obligation to maintain essential and necessary services. Unlike the situation in 1991, Governor Rowland has vetoed House Bill 6801 and issued an executive order instead to provide for continued government operations in the absence of a budget. The state constitution vests the Governor with the authority to veto legislation when he deems appropriate, including legislation regarding appropriations. See Conn. Const. art. fourth, 15 and 16. Governor Rowland therefore had the authority to veto House Bill 6801. Although the General Assembly had the authority to override the Governor's veto pursuant to Conn. Const. art. fourth, 15, it did not do so. In the absence of such an override, House Bill 6801 has no legal effect. The fact that the Governor issued Executive Order No. 29 at the same timeas he vetoed House Bill 6801 does not alter this conclusion. As we stated in Opinion No. 91-033, the Governor has the authority to issue an executive order to ensure the continued essential and necessary government operations in the absence of a state budget.

Finally, you asked about the "advisability" of a two-week temporary appropriations measure such as House Bill 6801. In our June 7, 1991 opinion, we recommended that the legislature adopt a continuing resolution providing temporary appropriations for continued essential government operations as a "prudent approach" to avoid "fiscal confusion and uncertainty" pending approval of a full budget. 1991 Op. Conn. Atty. Gen. No. 91-01. Later that year, in our November 4, 1991 opinion, we concluded that the Governor has the authority to maintain necessary government services on a temporary basis by executive order. 1991 Op. Conn. Atty. Gen. No. 91-033. We reaffirm our advice that the most prudent approach would be to take action that maintains governmental services in an orderly manner, providing reliability and clarity to the citizens. Preferably, as happened in 1991, agreement among the legislative and executive branches would be achieved on a temporary spending measure approved by the General Assembly and signed by the Governor. Such consensus would provide stability and certainty in this critical time.

If such consensus cannot be achieved, even for a temporary measure, then either a continuing legislative resolution, approved by the legislature over the Governor's veto, or an executive order issued by the Governor is legally acceptable. Both would ensure that essential government operations continue. Both are in effect stopgap, temporary measures that maintain necessary government functions and avoid damage to public health or safety. Care must be taken with both meaasures to avoid expending or withholding state money in a manner that is arbitrary or capricious, or otherwise fails to follow specific statutory or constitutional requirements.

I trust that this analysis answers your inquiry.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


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