Attorney General: Hon. Joan V. Hartley, Co-Chair, Higher Education and Employment Committee, Hon. Nancy E. Kerensky, Co-Chair, Higher Education and Employment Committee, 2004-013 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

August 11, 2004

Hon. Joan V. Hartley, Co-Chair
Higher Education and Employment Advancement Committee
Legislative Office Building
Room 1800
Hartford, CT 06106-1591

Hon. Nancy E. Kerensky, Co-Chair
Higher Education and Employment Advancement Committee
Legislative Office Building
Room 1800
Hartford, CT 06106-1591

Dear Senator Hartley and Representative Kerensky:

You have asked for an advisory opinion concerning the appointment of members to the Connecticut Employment and Training Commission ("CETC"). The CETC has been designated Connecticut's state workforce investment board (board) pursuant to Conn. Gen. Stat. § 31-3h(b)(5), which implements the federal Workforce Investment Act of 1998, P.L. 105-200 ("WIA") Sec. 111(b)(1)(C). You have asked whether restrictions on appointments to the board contained in § 31-3i(b) conflict with appointment provisions of WIA, and if so, whether the state statutory provisions are preempted by the federal law. We conclude that certain provisions of the state statute are preempted by WIA.

Sec. 111(b)(1)(C) of the WIA concerning the appointment of representatives to the board provides in relevant part:

(b) Membership. (1) In general. The State Board shall include –

(A) the Governor;
(B) 2 members of each chamber of the State legislature, appointed by the appropriate presiding officers of each such chamber; and
(C) representatives appointed by the Governor, who are –
(i) representatives of business in the State, who –
(I) are owners of businesses, chief executives or operating officers of businesses, and other business executives or employers with optimum policymaking or hiring authority, including members of local boards described in section 117(b)(2)(A)(i) [29 USC § 2832(b)(2)(A)(i)];
(II) represent businesses with employment opportunities that reflect the employment opportunities of the State; and
(III) are appointed from among individuals nominated by State business organizations and business trade associations;
(ii) chief elected officials (representing both cities and counties, where appropriate);
(iii) representatives of labor organizations, who have been nominated by State labor federations;
(iv) representatives of individuals and organizations that have experience with respect to youth activities;
(v) representatives of individuals and organizations that have experience and expertise in the delivery of workforce investment activities, including chief executive officers of community colleges and community-based organizations within the State;
(vi)(I) the lead State agency officials with responsibility for the programs and activities that are described in section 121(b) [29 USCS § 2841(b)] and carried out by one-stop partners; and
(II) In any case in which no lead State agency official has responsibility for such a program, service, or activity, a representative in the State with expertise relating to such program, service, or activity; and
(vii) such other representatives and State agency officials as the Governor may designate, such as the State agency officials responsible for economic development and juvenile justice programs in the State.

By its terms, WIA depicts a carefully crafted scheme delineating membership on the board to include representatives of various sectors of society with expertise that would be helpful to job creation. The statute gives legislative leaders authority to appoint four legislators to the board, and gives the governor the authority to make appointments to the board from seven specified categories of representatives. In all but two of these categories, the Governor is given complete discretion to appoint members of her choice within the specified category. The two exceptions are for the appointment of business representatives, which must be made "from among individuals nominated by State business organizations and business trade associations," Sec. 111(b)(1)(C)(i)(III); and the appointment of labor organization representatives, who must be "nominated by State labor federations." Sec. 111(b)(1)(C)(iii).

When the CETC was established in 1989, Conn. Gen. Stat. § 31-3i provided that all appointments were to be made by the Governor alone:

(a) The members of the Connecticut Employment and Training Commission shall be appointed by the Governor.

(b) The commission shall consist of twenty-four members, a majority of whom shall represent business and industry. The remaining members shall represent state and local governments, organized labor, education and community based organizations, including a representative of a community action agency, as defined in section 17b-885. The board shall meet no less than once every calendar quarter.

However, in 1999, with Public Act 99-195, the legislature amended Conn. Gen. Stat. § 31-3i in relevant part to provide that all future appointments to the board were to be made by the Governor from recommendations submitted by six legislative leaders:

(a) The members of the Connecticut Employment and Training Commission shall be appointed as specified in subsection (b) of this section.

(b)(1) The commission shall consist of twenty-four members, a majority of whom shall represent businesses and industry and the remainder of whom shall represent state and local governments, organized labor, education and community based organizations, including a representative of a community action agency, as defined in Section 17b-885.

(2) Effective six months after the United States Secretary of Labor approves the single Connecticut workforce development plan submitted to said secretary in accordance with the provisions of subsection (b) of section 31-11r, the Governor shall fill any vacancy on the commission from recommendations submitted by the president pro tempore of the Senate, the Speaker of the House of Representatives, the majority leader of the Senate, the majority leader of the House of Representatives, the minority leader of the Senate and the minority leader of the House of Representatives.

(emphasis added)

In your letter, you state that this "Recommendation Restriction" on appointments contained in the amended statute appears to conflict with the federal WIA requirements in two ways:

(1) it restricts the Governor's appointive power under WIA section 111(b)(1)(C); and

(2) it provides for a potential "block" on nominations from business and labor organizations that are specifically provided for in WIA Section 111(b)(1)(C)(i)(III) and WIA Section 111(b)(1)(C)(iii).

Under Sec. 111(e) of WIA, CETC is considered an "alternative entity" to satisfy the federal Workforce Investment Act. As an alternative entity, CETC must comply with the requirements of WIA Sec. 111(a-c):

(e) ALTERNATIVE ENTITY

(1) IN GENERAL – For purposes of complying with subsections (a), (b), and (c), a State may use any State entity (including a State council, State workforce development board, combination of regional workforce development boards, or similarly entity) that ..

(A) was in existence on December 31, 1997;

(B)(i) was established pursuant to section 122 or title VII of the Job Training Partnership Act, as in effect on December 31, 1997; or

(ii) is substantially similar to the State board described in subsections (a), (b), and (c); and

(C) includes representatives of business in the State and representatives of labor organizations in the State.

Therefore, to maintain its status under federal law, the state board must be "substantially similar" to the board required under Section 111(a-c) of WIA. The term "substantially similar" by its plain language means to a large degree alike as to the essentials. Essential in statutory construction is the identification of the purpose of the will of Congress. F.D.I.C. v. Raffa, 882 F. Supp. 1236, 1242 (D. Conn. 1995). We understand that the U.S. Department of Labor has informed you that in its view, the state statute violates CETC's status as a WIA Sec. 111(e) alternative entity because it is not substantially similar to the state board required by WIA Sec. 111(e)(1)(B)(ii). We conclude that the U.S. Department of Labor's position is a reasonable one.

Congress' purpose in the WIA appointment requirements is to share appointment authority among specified groups: it provides state legislative leaders with the authority to appoint four legislators to the board; it gives business and labor organizations the authority to nominate individuals to represent their interests on the board; and it gives the governor discretion and authority to appoint the remaining representatives to the board from among the enumerated categories of individuals and the nominations of business and labor. WIA Sec. 111(b)(1)(B).

Conn. Gen. Stat. § 31-3i, as amended by Public Act 99-195, upsets this shared appointing authority scheme by eliminating the recommendation authority of business and labor organizations altogether, and limiting the Governor's discretion to appoint, requiring all appointments to be made from recommendations from the legislature. The conflict between the terms of state and federal law is clear.

The preemption of state law should be inferred where a state law conflicts with federal law, " 'either because it is impossible to comply with both… or because the state law stands as an obstacle to the accomplishment and execution of congressional objectives.' " Cox Cable Advisory Council, v. Department of Public Utility Control, 259 Conn. 56, 62-63 (2002) (citations omitted). In the present case, it is not possible to comply with both statutes or to accommodate the objectives of Congress for shared appointment responsibilities under the current version of the state statute. We conclude that the CETC membership recommendation restriction of Conn. Gen. Stat. § 31-3i(b)(2) is in conflict with and preempted by WIA.

The conclusion of preemption is limited as to its scope. It applies only to the restrictions described in your letter, which conflict with the federal statute. "[W]hen federal law preempts state law, it does so only to the extent necessary to achieve federal goals." Shea v. First Federal Savings and Loan Ass'n. of New Haven, 184 Conn. 285, 292 (1981).

We trust this answers your inquiry.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


Thadd A. Gnocchi
Assistant Attorney General


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