Attorney General: The Honorable James F. Byrnes, Jr., Department of Transportation, 2003-019 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

November 28, 2003

The Honorable James F. Byrnes, Jr.
Department of Transportation
2800 Berlin Turnpike
Newington, CT 06111

Dear Commissioner Byrnes:

You have requested our opinion as to the following question: "Given the requirements of Section 4-9d [of the General Statutes] or any applicable Statute, [may] a Commissioner [of the Departments of Motor Vehicle, Public Safety or Transportation] delegate to a member of his or her staff not appointed as a Deputy Commissioner the authority and responsibility to vote on the State Traffic Commission ['STC']?" For the reasons that follow, we answer in the negative.

Section 14-298 of the General Statutes states which agency heads (namely, "the Commissioner of Transportation, the Commissioner of Public Safety and the Commissioner of Motor Vehicles" shall be members of the STC, but neither that statute nor anything in the rest of Chapter 249 ("Traffic Control and Highway Safety") addresses the issue of what designees of those Commission members may substitute for the former as voting members of the STC. It is clear that the Deputy Commissioner in each respective agency has the authority to vote on the STC in place of the Commissioner. Conn. Gen. Stat. § 4-8; Conn. Gen. Stat. § 5-196 (17). You ask, however, whether or not any other members of the agency staff may be delegated to fill that function. As the three Commissioners involved here are all appointed officers of the executive branch, the issue presented is whether or not anyone in the respective agencies other than the Deputy Commissioners may be deemed an officer of the agency for the purposes of Section 4-9d of the General Statutes.

The text of Section 4-9d provides in relevant part:

(a) 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, council, authority, task force or other body, and is unable or chooses not to 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. . . .

Because Chapter 46 of the General Statutes, which contains Section 4-9d, does not include a definition of "officer," it is appropriate to look for other applicable definitions of the term in other statutes dealing with related subject matter. See, e.g., State v. Ehlers, 252 Conn. 579, 589-590 (2000); Skakel v. Benedict, 54 Conn. App. 663, 676 (1999).

In seeking to determine that meaning [of statutory language], 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 legislative and common law principles governing the same general subject matter. . . . Id.; Carpenteri-Waddington, Inc. v. Commissioner of Revenue, 231 Conn. 355, 362, 650 A.2d 147 (1994); United Illuminating Co. v. Groppo, 220 Conn. 749, 755-56, 601 A.2d 1005 (1992." Internal quotation marks omitted.) Bortner v. Woodbridge, 250 Conn. 241, 258-59, 736 A.2d 104 (1999).

State v. Ehlers, supra, at 589-590 (emphasis supplied).

Section 5-196(17) of the State Personnel Act (Chapter 67 of the General Statutes) defines "[o]fficer" or "state officer" as "any person appointed to a state office established by statute, including appointing authorities." (Emphasis supplied.) While Conn. Gen. Stat. Section 4-9d is contained in Chapter 46 of the Statutes, dealing with the organization and "Management of State Agencies," and Section 5-196 ("Definitions") is contained in Chapter 67, concerning the State Personnel Act, both are concerned with the divisions between classes of persons in State service, and, in particular, among other things, with the distinctions between State officers on the one hand and State employees on the other. (See, e.g., Conn. Gen. Stat. Sections 4-1a, 4-9, 4-15, 4-18 and 4-20, employing the distinct terms "officers" and "employees.") One must assume that the State legislature created a harmonious statutory scheme in which those distinctions, and the uses of those terms, are consistent.

Similarly, Black's Law Dictionary, Sixth Edition (St. Paul, Minn.: West Publishing Company, 1990), at p. 1083, defines "state officer" as "[o]ne who holds elective or appointive position in state government, e.g., state attorney general.quot; Id. at 1409.

The position of deputy-commissioner is an appointive position established in Conn. Gen. Stat. § 4-8, which provides:

Each department head [e.g., Commissioner] may appoint such deputies as may be necessary for the efficient conduct of the business of the department [i.e., State agency]. Each department head shall designate one deputy who shall in the absence or disqualification of the department head or on his death, exercise the powers and duties of the department head until he resumes his duties or the vacancy is filled. Such deputies shall serve at the pleasure of the department head. Such appointees shall devote their full time to their duties with the department or agency and shall engage in no other gainful employment.

Since deputy commissioners are "appointed" and since their office is "established by statute," deputy commissioners are "state officers" under Conn. Gen. Stat. § 5-196(17). Deputy Commissioners may, therefore, be designated to serve on the STC. Conn. Gen. Stat. § 4-9d.

Nothing in the law bars the possibility that a person occupying a State position other than that of deputy commissioner might be an officer within the meaning of Conn. Gen. Stat. Section 4-9d, but we know of no such other person who is appointed and no other office established by statute within the State of Connecticut Departments of Motor Vehicles, Public Safety, or Transportation. Additionally, we are unaware of any other person in those agencies who may be considered a state officer under Connecticut case law.

In the case of Murachi v. Planning and Zoning Commission, 196 Conn. 192 (1985), the Connecticut Supreme Court, in a context similar to the one implied by your question, addressed the question of which government personnel are deemed "officers" and which are deemed "employees." In that case, the issue was whether or not a salaried town fireman was eligible to sit on the defendant commission. The pertinent statute barred any person "holding . . . salaried municipal office" from being a member of the commission.

In considering whether or not the fireman was a holder of public "office," the Court treated the distinction between a public officer and a public employee. (See Murachi, discussed supra, pp. 196-200.) The Court "considered the question to be one of fact," entailing an examination of "all the relevant circumstances." Id. at 197 and footnote 11 thereat. It also stated the following three-part test, which has been quoted, cited or relied upon in subsequent Connecticut cases in determining whether or not a person is a public officer:

We have said that "[t]he essential characteristics of a 'public office' are (1) an authority conferred by law, (2) a fixed tenure of office, and (2) the power to exercise some portion of the sovereign function of government. Kelly v. Bridgeport, 111 Conn. 667,671, 151 A. 268 [1930]; Mechem, Public Officers Section 1." Spring v. Constantino, 168 Conn. 563, 568-569, 362 A.2d 871 (1975); Housing Authority v. Dorsey, 164 Conn. 247, 251, 320 A.2d 820, cert. denied, 414 U.S. 1043, 94 S.Ct. 548, 38 L.Ed. 2d 335 (1973); see also Tremp v. Patten, 132 Conn. 120, 124-25, 42 A.2d 834 (1945); 63A Am. Jur. 2d, Public Officers and Employees Section 5 (1984). "An individual so invested is a public officer." Housing Authority v. Dorsey, supra, 251.

Id. at 198.

To be an officer within the meaning of Connecticut law, a person would almost certainly have to be elected or appointed to his or her position, not merely hired for it, and would likely have to hold some substantial executive power beyond that of a typical, or even a highly-placed, civil servant.

According to the pertinent facts as you have described them to us, the only position of which we are aware within the respective agencies that would satisfy the legal criteria for “state officer” would be the deputy commissioner position. Accordingly, under Conn. Gen. Stat. Section 4-9d, only a deputy commissioner may be designated by a Commissioner of the Departments of Motor Vehicles, Public Safety, or Transportation to act in his or her stead as a member of the State Traffic Commission.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


Lawrence Russ
Assistant Attorney General


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