Attorney General: Gerald E. Farrell, Jr., Chairman, State Marshal Commission, , 2005-016 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

July 1, 2005

Gerald E. Farrell, Jr.
Chairman
State Marshal Commission
765 Asylum Avenue
Hartford, Connecticut 06105 

Dear Chairman Farrell:

As Chairman of the State Marshal Commission you have requested a formal Opinion of the Attorney General as to the following two questions:

 

1.  Are the two ex officio, nonvoting members of the State Marshal Advisory Board, appointed pursuant to Conn. Gen. Stat. § 6-38b(a), entitled to attend executive sessions of the State Marshal Commission’s meetings?

 

2.  If the answer to the first question is in the affirmative, are they entitled to attend all executive sessions, or are there executive sessions they are not entitled to attend?  Specifically, are ex officio members entitled to attend executive sessions regarding personnel and disciplinary matters?  

 

For the reasons explained below, our answers to these questions are as follows:

 

1.  Ex officio members are entitled to attend executive sessions of the State Marshal Commission.

 

2.  They are entitled to attend all executive sessions, including those regarding personnel and disciplinary matters.

 

The reasons for these conclusions are explained below.

 

Conn. Gen. Stat. §6-38b(a) provides for the creation and appointment of a State Marshal Commission. It states as follows:

 

There is established a State Marshal Commission which shall consist of eight members appointed as follows: (1) The Chief Justice shall appoint one member who shall be a judge of the Superior Court; (2) the speaker of the House of Representatives, the president pro tempore of the Senate, the majority and minority leaders of the House of Representatives and the majority and minority leaders of the Senate shall each appoint one member; and (3) the Governor shall appoint one member who shall serve as the chairperson.  No member of the commission shall be a state marshal, except that two state marshals appointed by the State Marshals Advisory Board in accordance with section 6-38c shall serve as ex officio, nonvoting members of the commission.

 

“Executive sessions” is defined by Conn. Gen. Stat. §1-200.  Subsection (6) of that statute provides:

 

 “Executive Sessions” means a meeting of a public agency at which the public is excluded for one or more of the following purposes:  (A)  Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting; (B) strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled; (C) matters concerning security strategy or the deployment of security personnel, or devices affecting public security; (D) discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and (E) discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210.

 

            Conn. Gen. Stat. §1-231(a) specifies who may be in attendance at an executive session.  It provides:

 

At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons’ attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.

 

"Ex officio members of a public body are members for all purposes."  2 Am. Jur. Administrative Law, section 34.  As this office stated in a 1981 opinion to the Commissioner of Mental Health:

 

The term "ex officio' is used to indicate that the membership in question is created by the individual's position in another office.  The term according to Black's Law Dictionary, 5th Edition, means 'from office; by virtue of the office; without any other warrant or appointment than resulting from the holding of a particular office'. . . Ex officio members of a board are members for all purposes and have all the rights and duties of appointed members.  'They are each vested with full power and authority to do any and all things necessary and essential to carry out the purpose of the law in creating the board or body. . .' Barber Pure Milk Co. v. Alabama Milk Control Board, 156 So.2d 351, 358, 275 Ala, 489 (1963).  1981 Conn. Op. Atty. Gen. Lexis 105 (Nov. 25, 1981)

 

In light of these principles, there is no reason that ex officio members of the Commission cannot attend  executive sessions of the Commission.  They are clearly members of the Commission, pursuant to Conn. Gen. Stat. §  6-38b(a), even though they cannot vote.  Furthermore, there is no express limitation in §1-231 which prohibits the appointed ex officio members from participating at these executive sessions. See, Borer v. Board of Education, 2003 WL 21675344 (Conn. Super. 2003).  To the contrary, it is clear from the text of §1-231 that all members of the Commission may attend executive sessions, including ex-officio members, because section 1-231 neither includes nor excludes any member according to categories of either voting or non-voting members.  "The meaning of a statute shall be ascertained from  the text of the statute itself and its relationship to other statutes," especially when "the meaning of such text is plain and unambiguous."  Conn. Gen. Stat. §  1-2z. 

 

For these reasons we conclude that the answers to your questions regarding whether or not the two ex officio members are entitled to attend executive sessions, must be answered in the affirmative

 

Very truly yours,

 

RICHARD BLUMENTHAL

ATTORNEY GENERAL

 

 

Henri Alexandre

Assistant Attorney General

 

RB/HA


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Content Last Modified on 7/11/2005 9:34:05 AM