Attorney General: The Honorable Donald E. Williams, Senate President Pro Tempore and the Honorable Martin M. Looney, Senate Majority Leader, 2005-019 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

July 28, 2005

The Honorable Donald E. Williams
Senate President Pro Tempore
State Capitol
Hartford, CT 06106-1591

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

Dear Senator Williams and Senator Looney:

This letter is in response to your request for a formal legal opinion as to whether Executive Order No. 7 (the "Order") establishing a State Contracting Standards Board (the "Board") is unconstitutional, in whole or in part, as a violation of the separation of powers clause of article second of the state Constitution.1

I welcome and support the establishment of the State Contracting Standards Board and the other important contracting reforms contained in Senate Bill 94 and reflected in Executive Order No. 7. Indeed, I first proposed such reforms almost 20 months ago, in an interim report on my investigation of state contracting corruption. I proposed legislation to establish a statutory contract review board, with powers and independence similar to the oversight authority of the Properties Review Board over leases and purchases, along with other reforms. I have long sought and supported reform and overhaul of the State's contracting process to ensure that it is transparent, fair, and fully accountable to the public.

Executive Order No. 7 has been described as an interim step to implement critical safeguards necessary to restore public confidence in the contracting process, remove favoritism in the selection of contractors, and assure public trust. You question whether the Order intrudes on the legislative function by establishing the State Contracting Standards Board and imbuing it with certain responsibilities.

I conclude that the Order's core provisions will pass constitutional and statutory scrutiny. Several parts of the Order raise constitutional concerns, which may be corrected by relatively minor changes to its provisions. The Executive Order is a sound, interim step, which can be strengthened against potential legal attack with modest modification.

While the legal principles discussed in this opinion are important, my primary objective is to offer practical changes designed to deter court challenges to the Order, possibly by unscrupulous contractors, which could delay or even defeat its worthwhile measures. Even with such changes, it remains susceptible to attack by opponents who resist reform or reject our commitment to reform and restoring public credibility and integrity. Making it more impregnable requires legislative action, drastically reducing and removing such legal issues.

Legislative action is also necessary to make the Board and other reforms truly effective. As an interim step, reforms by executive order must necessarily be limited in effect. These self-imposed limits already in the Order -- and others suggested now to overcome constitutional issues -- highlight why a statute is preferable to an executive order under these circumstances. A consensus seems to exist on the core essentials of the Executive Order's substance. Only legislation can establish a board with real independence, and real power to write rules, or approve or terminate contracts and scrutinize and stop questionable practices, restoring public trust. A historic opportunity exists for the Governor and the legislature to work together to enact legislation that will provide the strongest possible protections to the citizens of the State in this most important area. I urge that it be done in a special session, as the Governor and legislative leaders seem to have supported.

The Governor issued Executive Order No. 7 on June 30, 2005, after vetoing Senate Bill 94, "An Act Concerning Reform Of The State Contracting Process," which created an independent body to develop standards for, and oversee the contracting procedures and practices of, state agencies, quasi-public entities and municipalities. Although the Order is modeled on S.B. 94, it differs from S.B. 94 in certain significant ways.2 Under the Order, the Board would consist of five members appointed by the Governor, paid by the State, and authorized to hire staff and make reasonable expenditures. Among other duties, the Board would be responsible for the preparation of a uniform procurement code governing the State's contracting and procurement policies and procedures.

Specifically you have asked for "an opinion on: 1) whether portions of Executive Order No. 7 represent an impermissible attempt to exercise the legislative function, and 2) whether it in any manner modifies any existing general statutes, and if not, whether it contains provisions with no legally binding effect."

As discussed in this opinion, I conclude that:

  • A State Contracting Standards Board may be established by Executive Order and its five members appointed by the Governor, so long as no new positions or appropriations of taxpayer funds are provided without the approval of the legislature or the Finance Advisory Committee. The Governor may seek to obtain authorization for new positions through the Finance Advisory Committee or, instead, appoint volunteers or existing state employees to the Board, and assign staff from existing agencies to provide support and assistance to the Board, insofar as permitted by law. The Governor cannot, on her own, establish new staff positions requiring new taxpayer funds. Although the Governor's constitutional authority to create a truly independent board is limited -- in the absence of legislative action -- these suggested changes will help avoid constitutional challenge.
  • The State Contracting Standards Board created by the Order may constitutionally examine the state contracting process, making recommendations for laws to improve it, and for repeal of existing statutes. The Board may also recommend changes to the procedure for disqualifying and suspending state contractors. As recognized by the Executive Order, legislative action, or, in some circumstances, separate actions by existing state agencies, will be required to implement the recommendations.
  • The Board may prepare and recommend to the legislature a new, uniform procurement code, establishing uniform contracting standards and practices among the state's contracting agencies. These provisions are constitutional because, as the Executive Order itself recognizes, the new code will have no legal effect unless and until it is adopted and approved by the General Assembly.
  • One of the Board's powers as contained in the Order is to review and recommend termination "for cause" of any contract or procurement agreement undertaken by any state contracting agency. (Section 6). While the Board may make such a recommendation, I recommend clarifying that the final decision to terminate a contract "for cause" must be made by the appropriate state agency with statutory contracting authority. All state contracts should contain "for cause" language.
  • Certain of the Board's powers and functions may be read to conflict with the statutory jurisdiction of existing state agencies, including those defining the contract data retention requirements for state agencies (Section 4 (j)) and approving an ethics training course for state employees involved in procurements and for state contractors. Because a transfer of these powers to the Board could be interpreted as changing existing law -- a function reserved to the Connecticut legislature -- Executive Order No. 7 should be amended either to make the Board's role in such duties advisory, or to provide that such duties shall be performed by existing agencies "insofar as permitted by law."
  • The Governor does have the authority to impose disclosure requirements on state contractors and prohibit state employees from personally contracting with any contractor doing business or seeking to do business with the state employee's agency consistent with state law.
  • I support Section 12 of the Executive Order requiring a competitive selection process for all private attorneys retained by this office when attorneys fees can reasonably be expected to be $50,000 or more. I supported a similar provision in Senate Bill 94. In fact, the present policy of my office is to utilize a competitive selection process (including requests for proposals or requests for qualifications) for all contracts with private attorneys where fees will be $20,000. The only exceptions are when an agency, with Office of Policy and Management approval, has requested a particular law firm for valid reasons, or the Office of Policy and Management states that immediate action is needed to protect the state and the public's interest.

In short, key provisions of the Executive Order are presently enforceable. Other provisions, while admirable and desirable, are unenforceable or less effective than legislative provisions with the same objectives. As an interim step toward continued reform, the Executive Order is generally constitutional with certain suggested changes. Without statutory changes, the Board's role will be largely advisory. It can propose a new procurement code to the Governor and Legislature. It can recommend action on specific contracts to agency heads responsible for those contracts. Its dependence on staff from the departments that undertake and approve major state contracts will lead to perceived, if not actual, reliance on such departments, which will undermine the Board's effectiveness and independence. Eventually, there must be an independent and empowered Board, which only a legislative enactment can accomplish.

Discussion

The separation of powers doctrine is embodied in article second of the Connecticut constitution, which states that "[t]he powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another." Conn. Const., Art. Second. Although the Connecticut Supreme Court has recognized that "[e]xecutive, legislative and judicial powers of necessity overlap each other, and cover many acts which are in their nature common to more than one department," Massameno v. Statewide Grievance Committee, 234 Conn. 539, 552 (1995), it has also recognized that there are limits beyond which each of the branches cannot go without encroaching on the powers of the others. "In deciding whether one branch's actions violate the constitutional mandate of the separation of powers doctrine, the court will consider if the actions constitute: (1) an assumption of power that lies exclusively under the control of another branch; or (2) a significant interference with the orderly conduct of the essential functions of another branch." Seymour v. Elections Enforcement Commission, 255 Conn. 78, 107, 762 A.2d 880 (2000).

Applying this test, the Connecticut Supreme Court has repeatedly emphasized that "the lawmaking function is vested exclusively in the legislative department." State v. Stoddard, 126 Conn. 623, 627, 13 A.2d 586 (1940); Bottone v. Westport, 209 Conn. 652, 663, 553 A.2d 576 (1989); see also Conn. Const., Art. Third, 1. Thus, "the Legislature cannot delegate the lawmaking power to any other department or agency," Stoddard, 126 Conn. at 627; Bottone, 209 Conn. at 663, and action by other branches that encroaches upon the legislative power is invalid. See, e.g., University of Connecticut Chapter AAUP v. Governor, 200 Conn. 386, 393, 512 A.2d 152 (1986)("a partial veto is unconstitutional because it distorts or frustrates the intent of the legislature or enables the executive to legislate affirmatively"); Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals and Health Care, 177 Conn. 356, 367, 417 A.2d 358 (1979)(administrative agency may not replace statutory scheme with rulemaking procedures of its own invention).3

Although the Connecticut courts have not specifically applied the separation of powers doctrine in the context of an executive order, courts in other jurisdictions have concluded that the doctrine bars the Governor from legislating by executive order. For example, in Colorado General Assembly v. Lamm, 700 P.2d 508 (Colo. 1985), the Colorado Supreme Court considered whether the Governor had the authority, by executive order, to transfer unspent appropriated funds from one department within the executive branch to another. Noting that "the power of the General Assembly over appropriations is absolute," id. at 519, the court concluded that "the legislative power of appropriation was impermissibly contravened by the major transfers" of appropriated funds ordered by the Governor. Id. at 522.

Similarly, in Opinion of the Justices, 360 A.2d 116 (N.H. 1976), the New Hampshire Supreme Court considered the Governor's authority to issue an executive order that, in part, restricted the right of elected officials to do business with the state unless the business was the result of competitive bidding. Although the constitution vested the Governor with the executive power of the state and the responsibility for the faithful execution of the laws, the court emphasized that the Governor's power was "to enforce the law, but not to enact it." Id. at 121. Declaring the order invalid, the court concluded that "[h]owever desirable comprehensive legislation in the area of conflict of interest may be, the enactment of such legislation is the prerogative and responsibility of the legislature and not of the executive." Id. at 122. See also Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952)(the President had no authority to issue an executive order directing the Secretary of the Commerce to seize the steel mills because "in the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker"); Rapp v. Carey, 375 N.E.2d 745 (N.Y. 1978)(Governor of New York lacked the authority to issue an executive order requiring numerous state employees, many of whom were not subject to removal by the Governor, to file annual financial disclosure statements and to abstain from various political and business activities that were not prohibited by statute); State of Kansas ex. rel. Stephan v. Finney, 836 P.2d 1169, 1183-1185 (Kan. 1992)(governor had no power to bind the State to the terms of a tribal compact that required the establishment of a State Gaming Agency that did not previously exist and had never been authorized by the legislature); 1993 Conn. Op. Atty Gen. No. 004, 1993 Conn. AG Lexis 39 (Feb. 11, 1993)(Governor's execution of Memorandum of Understanding with Mashantucket Pequot Tribe did not violate separation of powers because it did not enact new laws or amend existing laws).

The separation of powers doctrine also prohibits the Governor from issuing executive orders that conflict with existing law. See, e.g. Massachusetts Bay Transportation Authority Advisory Board v. Massachusetts Bay Transportation Authority, 417 N.E.2d 7 (Mass. 1981)(executive order that conflicted with existing legislation governing the transit authority's budget was invalid); State ex. rel. Dodrill v. Scott, 352 S.E.2d 741 (W.Va. 1986)(executive order that conflicted with existing legislation setting forth mandatory prison terms was invalid); State of Nevada Employees Ass'n, Inc. v. Daines, 824 P.2d 276 (Nev. 1992)(Governor's authority as supreme executive power did not authorize him to order deferral of salary increases that had been authorized by the legislature); O'Neil v. Thomson, 316 A.2d 168 (N.H. 1974)(Governor not authorized to issue executive order prohibiting the hiring of additional state employees or the purchase of additional state automobiles because the order conflicted with legislative mandates).

This issue arose in 2002 when the Connecticut Attorney General was asked to opine on the constitutionality of Executive Order No. 26, which directed agencies not to "make a final determination under their authorities with respect to the construction of large-scale gas or electric transmission expansion projects insofar as permitted by law until January 15, 2003." The Attorney General began his analysis by noting that, "[a]s a fundamental principle of law, an Executive Order may not contradict or supersede a statute or constitutional provision, and may not suspend, modify or revoke any statutory provision enacted by the General Assembly." 2002 Conn. AG Lexis 13 *1 (April 17, 2002). Thus, if the Executive Order required agencies to disregard statutory requirements, such as statutorily imposed deadlines or criteria or procedures mandated by the governing statutes, it would be unconstitutional. Because the order did none of these things, and simply ordered that final determinations be held in abeyance "insofar as permitted by law," the Attorney General concluded that the order was valid. Any deadlines and procedures that were statutorily required to be met prior to January 15, 2003, would continue to be met and could not be legally suspended by the executive order.

Within these constitutional constraints, the Governor may issue an executive order provided that she has express or implied constitutional or statutory authority to do so. See Chisholm v. Georgia, 2 U.S. 419, 446 (1793), superseded by statute on other grounds (a governor has only those powers specifically vested in her by constitutional or statutory grant); 81A C.J.S., States, 130. Although the Connecticut constitution does not grant the Governor express authority to issue executive orders, this Office has concluded that the Governor's constitutional authority set forth in article fourth, 12, to "take care that the laws be faithfully executed" vests her with implied authority to issue executive orders to carry out this duty. See, e.g., 1995 Conn. AG Lexis 25 (Feb. 2, 1995); 1991 Conn. AG Lexis 65 (Nov. 4, 1991); 1986 Conn. Op. Atty Gen. 13 (Feb. 5, 1986). In addition, numerous statutes grant the Governor express authority to issue executive orders in certain, specific circumstances. See, e.g., Conn. Gen. Stat. 3-6a (road closures in bad weather), 16a-11(a)(energy emergency), 19a-70 (health emergency), 23-50 (park closure due to fire danger), 27-5(adoption of naval militia law), 28-9(h)(civil preparedness emergency), and 36a-23(a)(designation of bank holidays).

Turning to Executive Order No. 7, it should be noted that there is no state constitutional or statutory provision expressly granting the Governor the authority to establish the Board. As discussed above, however, the Governor has implied authority under article fourth, 12, of the Connecticut constitution to ensure compliance with existing law. In addition, she has statutory authority under Conn. Gen. Stat. 3-6 to "formulate plans for the better coordination of the work of the budgeted agencies" and "direct such action by the several budgeted agencies as will, in [her] judgment, effect efficiency and economy in the conduct of the affairs of the state government." Conn. Gen. Stat. 3-6.

While most provisions of Executive Order No. 7 are fully within the Governor's authority, some may implicate the separation of powers doctrine, as discussed more fully below.

Specifically, sections 1(a), 1(b) and 1(c) of the Order provide for the establishment of the Board, which shall consist of five members appointed by the Governor.4 Because the power of appointment is not an exclusively legislative power, see Conn. Gen. Stat. 4-1; 1990 Conn. Op. Atty Gen. 90-13 (April 17, 1990); 1976 Conn. Op. Atty Gen. 1976 WL 30010 (Feb. 11, 1976),5 and the appointments in themselves do not constitute a "significant interference with the orderly conduct of the essential functions of another branch," Seymour, 255 Conn. at 107, I conclude that the act of appointment is consistent with the separation of powers doctrine and appears to be within the Governor's implied constitutional and statutory authority. As will be discussed within this opinion, to the extent the appointments create new compensated positions in state government that are not authorized by law, they encroach on the authority of the legislature. See Conn. Gen. Stat. 3-1. Such infirmities may be avoided if the Governor seeks approval to create new positions within existing state agencies from the Finance Advisory Committee pursuant to Conn. Gen. Stat. 4-87(b), or, instead, utilizes unpaid volunteers or existing state employees, consistent with present law.

With regard to the Board's duties, to the extent that such duties consist of recommending changes in the law, as opposed to actually changing the law, there is no violation of the separation of powers doctrine. Thus, for example, the Governor may consistent with the Constitution charge the Board with recommending the repeal of repetitive, conflicting or obsolete statutes concerning state procurement ( 4(a)); monitoring implementation of the state contracting portal and making recommendations for improvement to the Department of Administrative Services ( 4(g)); providing the Governor with recommendations concerning the uniform procurement code ( 4(i)); developing recommendations for the General Assembly whereby the powers, duties and obligations of the State Properties Review Board will be performed by the State Contracting Standards Board ( 4(k)); making recommendations on the procedure that agencies should utilize to disqualify a contractor from bidding on state contracts ( 7); and making recommendations on the procedure that agencies should utilize to suspend contractors from bidding on state contracts ( 8). Such recommendations, because they are advisory, will have no binding legal effect absent action by the legislature or the state agencies with statutory authority over the subject matter of the recommendations.6

The same conclusion applies to Section 3 of the Executive Order, which charges the Board with preparing a uniform procurement code. Although the code is designed to change existing law or create new law by, for example, establishing uniform contracting standards and practices among the state's contracting agencies, the Executive Order itself recognizes that the code will not take effect, and will be a nullity, unless and until it is approved and adopted by the legislature. Executive Order No. 7, 3(e). Thus, the code, as drafted by the Board, will be solely a recommendation until approved by the legislature. Accordingly, I conclude that provisions of the Order that direct the Board to draft the code do not violate the separation of powers clause.7

Certain other provisions of the Order may raise constitutional concerns. In particular, sections 1(d), 1(e), 1(f) and 1(g) establish specific compensation for Board members, create the position of Executive Director and require that he or she be salaried, placed in the state employee management pay plan and provided with specific benefits. These sections also permit the Board to hire employees -- all placed in the state classified service and considered employees of DAS for administrative purposes -- and to make reasonable expenditures. To the extent that these provisions create new positions in state government and require that they be funded, they appear to intrude on the exclusive domain of the legislature to legislate and appropriate funds. See Conn. Gen. Stat. 2-33, 4-69(4); Eielson v. Parker, 179 Conn. 552, 560-561, 427 A.2d 814 (1980)("the power of regulating by law the compensation of public officials is inseparable from one of the broadest and most important fields of legislative power, namely, that of creating the whole machinery of government and providing for its administration"); Bridgeport v. Agostinelli, 163 Conn. 537, 544, 316 A.2d 371 (1972)("the power to legislate, which our constitution has committed solely to the General Assembly, necessarily includes the power to appropriate funds to finance the operation of the state and its programs"). In addition, the requirement that the Executive Director appointed by the Governor be salaried conflicts with Conn. Gen. Stat. 4-1, which prohibits such compensation "unless the same is prescribed by law."

In State of Kansas v. Finney, 836 P.2d 1169 (Kan. 1992), the Governor of Kansas negotiated a tribal-state compact with a local Indian tribe, which, among other provisions, would have "require[d] the State to expend substantial sums of money in hiring and training new personnel." Id. at 1176. Raising separation of powers concerns, including the concern that "[t]he legislature has not authorized such and the same has not been budgeted," the Kansas Supreme Court concluded that the Governor had no authority to bind the State to the compact. A similar concern is warranted here.

The July 22, 2005 letter that I received from four Administration officials, see footnote 1, supra, takes the position that any concern over the Governor's authority to fund the Board is unwarranted because Public Act No. 05-251, "An Act Concerning The Budget For The Biennium Ending June 30, 2007, Deficiency Appropriations for the Fiscal Year Ending June 30, 2005, and Certain Taxes and Other Provisions Relating to Revenue" (the Budget Act), specifically appropriates $790,750 for a "Contracting Standards Board" for the 2005-2006 fiscal year. As is clear from the timing of the Budget Act, however, and the description of its highlights by the General Assembly's Office of Fiscal Analysis (OFA), the funds that it appropriates are for the statutory State Contracting Standards Board that the legislature proposed in S.B. 94, not for the Board described in Executive Order No. 7.

In particular, it is significant that when the House and Senate passed the Budget Act on June 6, 2005, and June 7, 2005, respectively, the House had already passed S.B. 94 and the Senate was about to pass it.8 Because Executive Order No. 7 was not issued until June 30, 2005, and therefore did not even exist at the time that the Budget Act was passed, the legislative appropriation for the "Contracting Standards Board" must have been intended for the Board created by S.B. 94. This conclusion is confirmed by the General Assembly's OFA "Highlights of the 2005-2007 Biennial Budget," which states in pertinent part:

SB 94, as passed in both houses creates a 9-member board to oversee all state contracts, effective July 1, 2005. The board will: (1) review existing state contracting and procurement laws, regulations and practices, (2) draft and maintain a uniform procurement code, and (3) develop a procurement training program for state employees. An office with 10 staff members is established to support the activities of the board. The budget act provides funding in the amount of $790,750 in FY 06 and $995,988 in FY 07 for the new agency.

General Assembly, Office of Fiscal Analysis, "Highlights of the 2005-2007 Biennial Budget," p. 12 (June 8, 2005)(emphasis added).

By definition, an "appropriation" is "an authorization by the General Assembly to make expenditures and incur liabilities for specific purposes." Conn. Gen. Stat. 4-69(4). When funds have been appropriated for a specific purpose, they cannot be designated by the Governor for a different purpose. See Conn. Gen. Stat. 4-97; 4-87; see also Colorado General Assembly v. Lamm, 700 P.2d 508 (Colo. 1985)(Governor had no authority to transfer appropriated funds by executive order from one department to another). Indeed, Conn. Gen. Stat. 4-97 clearly states that "[n]o appropriation or part thereof shall be used for any other purpose than that for which it was made unless transferred or revised as provided in section 4-87." Section 4-87(a) permits such a transfer only between the specific appropriations of a budgeted agency, at the request of the budgeted agency, and only with the consent of the Finance Advisory Committee if the amount to be transferred exceeds a certain monetary threshold.9 Executive Order No. 7 itself explicitly declares that the SCSB that it creates "is not a state agency." Executive Order 7, 1(f). Accordingly, the fact that the legislature appropriated funds for the State Contracting Standards Board that would have been established had S.B. 94 been signed into law by the Governor does not mean that those funds can be used for the entirely different entity by the same name that was created by Executive Order No. 7.

Given the lack of an appropriation for the Board created by Executive Order No. 7, the Governor may avoid legal challenge by seeking approval for new positions within existing state agencies from the Finance Advisory Committee pursuant to Conn. Gen. Stat. 4-87(b). Alternatively, the Governor may appoint volunteers or current state employees to the Board, and assign staff from various state agencies to provide the Board with support and assistance, consistent with existing law. I recognize that this suggestion detracts from the goal -- which I support as a matter of policy -- of creating an independent board, see Executive Order 7, 1(h), but the Governor's power to do so unilaterally is limited by the constitution. In this regard, a legislative solution, which is not similarly constrained, would be more effective in accomplishing the Order's goals.

Other provisions of the Order may be subject to constitutional challenge because they may be viewed as changing existing law. For instance, section 4(h) requires Board to "[d]efin[e] the contract data retention requirements for state agencies" with regard to certain information concerning state contracts, and section 4(j) states that it shall "[a]pprov[e] an ethics training course for state employees involved in procurement for state contractors." These powers are already within the authority of existing agencies. See Conn. Gen. Stat. 11-8a (state librarian responsible for approving records retention schedule); 2005 Conn. Pub. Acts No. 05-183, 3(a)(5)(Office of State Ethics is responsible for providing yearly training to all state employees regarding the code of ethics). Insofar as the Board sets forth recommendations that other agencies adopt, no problems would arise. If its actions impose mandates, there may be conflicts with existing statutes. Because a transfer of such powers to the Board could be interpreted as changing existing law -- a function reserved to the Connecticut legislature -- Executive Order No. 7 should be amended either to make the Board's role in such duties advisory, or to provide that such duties shall be performed by existing agencies "insofar as permitted by law."

Other provisions, such as sections 4(c), 4(d), 4(e), 5(a), and 5(b) vest the Board with specific responsibilities only after the legislature adopts the procurement code. As the Executive Order appears to recognize, the Board cannot exercise these functions unless the legislature approves the new procurement code. As such, these responsibilities of the Board are not currently enforceable.

Section 6 of the Order gives the Board the authority to recommend termination "for cause" of any contract or procurement agreement undertaken by any agency. The Board may make such a recommendation. State agencies with statutory contracting authority possess the power to terminate contracts "for cause" when a termination "for cause" provision is contained in a contract, which appears to be the present general practice of the state for large state contracts. "Generally a contract remains in force until it has been terminated, either according to its terms or through the acts of the parties [w]hen the right to terminate a contract on notice is reserved, it is as valid in law as any other clause of the instrument." CJS, Volume 17B, Section 421 (footnotes omitted). See also, Corbin on Contracts, Volume 2, Section 6.16, 1995 (Power to terminate may be given to each of the parties). I recommend, therefore, clarifying that the final decision to terminate a contract "for cause" must be made by the appropriate state agency with statutory contracting authority. I agree that all state contracts should contain termination "for cause" language.

Finally, Section 12 of the Order requires a competitive selection process for all private attorneys retained by this office when attorneys' fees can reasonably be expected to be $50,000 or more. I support this provision of the Order and I supported a similar provision in Senate Bill 94. In fact, the present policy of my office is to utilize a competitive selection process (including a request for proposals and request for qualification) for all private attorney contracts when fees can be expected to be $20,000 or more. The only exceptions are when an agency, with the approval of the Office of Policy and Management, requests a particular law firm for a valid reason or the Office of Policy and Management states that immediate action is needed to protect the State and the public interest.

In sum, I conclude that the essential elements of Executive Order No. 7 may be implemented, with modifications to avoid constitutional challenge, possibly by unscrupulous contractors who may seek to avoid or abrogate state contracting reform. The Order's primary purpose -- "to ensure [that the State's] contracting process reflects the highest standards of integrity, is clean and consistent and is conducted in the most efficient manner possible to enable state agencies to deliver programs and serve our citizens" (preamble to Executive Order No. 7) -- will be most effectively accomplished through legislative reform. Accordingly, I strongly support the Governor and the General Assembly working together to enact effective, enforceable measures that restore and enhance public trust and confidence in the state contracting process.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


1On July 22, 2005, I received a letter from Linda J. Yelmini, Commissioner of the Department of Administrative Services, Robert L. Genaurio, Secretary of the Office of Policy and Management, James T. Fleming, Commissioner of the Department of Public Works, and Kevin J. Rasch, Legal Counsel for the Office of the Governor, responding to the statements that you made in your request for an opinion. Where appropriate in this opinion, I have responded to the points raised by these Administration officials. On July 27, 2005, I received a letter from you responding to the July 22 letter from the four Administration officials.

2Among other differences, the Order, inter alia, (1) changes the composition of the Board to consist of five instead of nine members, all of whom are appointed solely by the Governor and serve at her pleasure, rather than being appointed by the Governor and leaders of the General Assembly as in S. B. 94; (2) adds two additional functions to the functions of the uniform procurement code establishing standards for leases and lease-purchase agreements, and providing a process for competitive sealed bids, proposals, and other procurements; (3) adds a prohibition on appointed officials and executive branch employees entering into contracts for goods and services for personal use with any person doing business, or seeking to do business, with his or her agency; (4) adds a requirement that all contractors disclose to agency heads any items of value provided to employees for which full payment has not been made; (5) excludes political subdivisions of the state from the definition of "state contracting agency;" and (6) eliminates the bar on privatization.

3Although the legislature cannot delegate its lawmaking power, it "may authorize an administrative agency to fill up the details [in the law] by prescribing rules and regulations for the operation and enforcement of the law." Stoddard, 126 Conn. at 628. Any such "statute must declare a legislative policy, establish primary standards for carrying it out, or lay down an intelligible principle to which the administrative officer or body must conform, with a proper regard for the protection of the public interests and with such degree of certainty as the nature of the case permits, and enjoin a procedure under which, by appeal or otherwise, both public interests and private rights shall have due consideration." Id.

4In requiring that the SCSB's members be appointed exclusively by the Governor, the Order differs from S.B. 94. Senate Bill 94 provided for a board made up of nine members, five of whom would have been appointed by the Governor and four of whom would have been appointed by the General Assembly. S.B. 94 2(a). It is, of course, critical to the Board's effective oversight that some members be appointed by someone other than the head of the state agencies that the Board is intended to oversee. While the letter of July 22, 2005, sent to me by four Administration officials (see footnote 1, supra) indicates that the Governor intends to amend the Order to include legislative appointments to the Board, such an amendment could raise separation of powers concerns because the Governor cannot by Executive Order direct the legislature to make such appointments. Since we have not seen language intended to accomplish this result, we do not opine on its constitutionality. In this regard, a legislative solution, which could provide for both legislative and gubernatorial appointments, would be more effective in accomplishing the Order's goals.

5Unlike the U.S. Constitution, the Connecticut constitution does not contain an Appointments Clause.

6The July 22, 2005 letter that I received from four Administration officials, see footnote 1, supra, stated that the Governor intended to amend section 7(i) of the Order (which pertains to the period of disqualification of a contractor) because it is ambiguous and could be read to conflict with Conn. Gen. Stat. 4a-63. Because such a conflict may exist, and it is unclear whether section 7(i) was intended to be solely a recommendation similar to the other parts of section 7, I agree that amendment and clarification of this section is warranted.

7It should be noted that the Order's definition of "state contracting agency," to which the code would apply, differs from the definition of "state contracting agency" in S.B. 94 in that the latter definition explicitly excluded the Judicial Department and the Joint Committee on Legislative Management. Because the definition of "state contracting agency" in the Order is unclear as to its scope, and in order to avoid separation of powers concerns, I recommend that the Executive Order definition be amended to clarify that it does not include the Judicial Department and the Joint Committee on Legislative Management

8S.B. 94 was passed by the House on June 4, 2005, and by the Senate on June 8, 2005.

9 Conn. Gen. Stat. 4-87(a) states, in pertinent part: "Whenever any specific appropriation of a budgeted agency proves insufficient to pay the expenditures required for the statutory purposes for which such appropriation was made, the Governor may, at the request of the budgeted agency, transfer from any other specific appropriation of such budgeted agency such amount as the Governor deems necessary to meet such expenditures, except that transfers made from appropriations for fringe benefits to the operating funds of any constituent unit of the state system of higher education may be made only at the close of the fiscal year. No transfer to or from any specific appropriation of a sum or sums of over fifty thousand dollars or ten per cent of any such specific appropriation, whichever is less, shall be made under this section in any one fiscal year without the consent of the Finance Advisory Committee, except for transfer made from appropriations for fringe benefits to the operating funds of any constituent unit of the state system of higher education. Notification of all transfers shall be sent to the joint standing committee of the General Assembly having cognizance of matters relating to appropriations and the budgets of state agencies, through the Office of Fiscal Analysis." Conn. Gen. Stat. 4-87(a).


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