Attorney General: Robert S. Rudewicz, Director of Operations, State Marshal Commission, 2005-001 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

January 3, 2005

Robert S. Rudewicz
Director of Operations
State Marshal Commission
765 Asylum Avenue
Hartford, CT 06105 

Dear Mr. Rudewicz:

You have requested our advice regarding the State Marshal Commission's course of action regarding auditing the records of a deceased marshal. You advised us in your letter that the daughter of a deceased marshal inquired of your office as to whether or not she could "continue to collect on wage executions," which collection had apparently been commenced by her deceased father but had not been completed at the time of his death. You note in your letter that "she was informed that she could not, that executions must be collected by a state marshal."

You further noted that your office has attempted to locate the deceased marshal's daughter for the purpose of recovering the marshal's records and accounts. These materials are needed for the purpose of performing the audit required under the provisions of Conn. Gen. Stat. § 6-38e. You have made efforts to locate the daughter by "certified mail" but your correspondence was returned 'unclaimed." You now seek our advice on “what our further responsibilities are in relation to this audit."

For the reasons amplified below, it is our opinion that only a "levying officer" may collect on wage executions and an audit and accounting of the deceased state marshal's records and accounts is required. In this regard, the Commission must undertake additional and more comprehensive efforts at locating the accounts and records of the deceased state marshal.

Before turning to your specific question, it is necessary to correct what may be a misunderstanding concerning who has the authority to collect wage executions. In your letter you state, in part, that "[wage] executions must be collected by a state marshal." This statement is not literally accurate. Pursuant to relevant statutory provisions, "[i]f a judgment debtor fails to comply with an installment payment order, the judgment creditor may apply to the court for a wage execution . . . . On receipt of the application, a clerk of the Superior Court shall issue a wage execution against the judgment debtor, directed to a levying officer, to enforce payment of the judgment." Conn. Gen. Stat. §§ 52-361a (a) (b) (emphasis added)1

As noted above, your office has advised the marshal's daughter that "executions must be collected by a state marshal." Actually, the relevant statute, Conn. Gen. Stat. § 52-361a (b) requires that "a wage execution [shall be] directed to a levying officer." The term "levying officer means a state marshal or constable acting within such marshal's or constable's geographical jurisdiction or in IV-D cases, any investigator employed by the Commissioner of Social Services." Thus, although not specifically requested in your letter, we wish to correct this possible misunderstanding in the statutory definition of "levying officer."

With regard to your specific question on whether an effort to locate the marshal's daughter by mail satisfies your statutory obligation, our advice is that it does not.

Conn. Gen. Stat. § 6-38e as amended by Public Act No. 03-224, § 4 distinctly vests the duty in your commission "[u]pon the death . . . of a state marshal, [to] appoint a qualified individual to oversee and audit the records and accounts of such state marshal and render an accounting to the commission."2

In our letter of December 6, 2001, we observed that the purpose of these statutory provisions concerning audits is "to ensure that no one absconds with funds held by the deceased State Marshal." In our view, a public duty of significance calls for a thorough and comprehensive search for these records. Your attempt to locate the daughter was an appropriate first step, but you should now conduct a broader investigation to locate the records. The Commission or an investigator may need to contact business associates, court officers or anyone else who may have information relevant to the location of the records in question.

We also suggest that you contact the State Police because Conn. Gen. Stat. § 53-153 provides, in relevant part, that "any person who willfully and corruptly, takes away, . . . any . . . record . . . in the possession or custody or under the control of any . . . department or officer of the state . . ." may have committed a felony.

When the records are located, if you have any difficulty in obtaining their possession, you should notify this office. In our view, the Commission has the legal standing -- indeed duty -- to commence legal action to obtain custody of these materials so that this mandatory audit may be performed. This office will be prepared to bring an appropriate legal action if necessary.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


Henri Alexandre
Assistant Attorney General

RB/HA


1 In our letter to Chairman Mitchell R. Harris, dated December 6, 2001, we advised your office that "the decision of which particular proper officer to employ is one that is typically made in Connecticut by the party who needs a serving officer or such party's duly authorized representative (typically the party's attorney) in the first instance. If that proper officer dies and the party who first arranged for the use of serving officer . . . selects another proper officer to complete the service, that action should generally be sufficient. ... There is also the question of whether the State Marshal Commission has the authority to select the proper officers to complete service when an officer resigns, if the party has not done so . . . . [I]n the absence of any other selection of a proper officer to complete service of any executions, and to ensure that all executions are served in a timely manner, we believe the authority given to the State Marshal Commission in this section [Conn. Gen. Stat. § 6-38e]is sufficient to make the selection."

2 Except as may be entailed in reviewing the audit of the appointed "qualified individual" the statute does not, as indicated in your letter, require the Commission to perform the audit itself.


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