Attorney General: Honorable James T. Fleming, Commissioner, Department of Public Works, Formal Opinion 2006-010, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

April 17, 2006

The Honorable James T. Fleming
Commissioner
Department of Public Works 165 Capitol Avenue
Address
Hartford, CT 06106

Dear Commissioner Fleming:

 

You have requested an opinion as to whether, in light of the State Properties Review Board’s (the “SPRB”) March 27, 2006 ratification of the November 2, 2005 Purchase and Sale Agreement (the “Agreement”) between the State of Connecticut (the “State”) and the Town of Preston, you are required to  resubmit the Agreement to the General Assembly’s Joint Standing Committees on Finance Revenue and Bonding (the “Finance Committee”) and Government Administration and Elections (the “GAE Committee,” together the “Committees”).    

 

As is set forth more fully below, we conclude that you are not required to again seek approval from the Committees under the circumstances presented here because: (1) the SPRB’s March 27, 2006 ratification relates back to its original November 17, 2005 approval of the Agreement; and (2) the legislature did not intend Conn. Gen. Stat. § 4b-21(d) to require a second round of legislative approvals where, as here, there have been no changes to the Agreement or the underlying record since the Committees approved it.

The following background is relevant to your question.  Under the Agreement, the State agreed to convey to the Town of Preston an option to purchase a portion of the Norwich State Hospital campus (the “Property”), declared surplus property pursuant to Section 4b-21 of the General Statutes.1  Consistent with Section 4b-21(c) of the General Statutes, the Agreement was signed by: (a) the First Selectman for the Town of Preston and the Commissioner of the Department of Public Works (the “Commissioner”) on November 2, 2005; (b) the Secretary of OPM on November 4, 2005; (c) the Chairman of the SPRB on November 17, 2005; (d) the House and Senate Chairs of the Finance Committee on December 27, 2005; (e) the House and Senate Chairs of the GAE Committee on January 4, 2006; and (f) the Attorney General on January 5, 2006.2  In addition, and pursuant to the requirements of Conn. Gen. Stat. § 4b-21(c), the members of both the Finance Committee and the GAE Committee voted to approve the Agreement on December 27, 2005 and January 4, 2006, respectively.  

Prior to the time the Committees approved the Agreement, and also pursuant to Conn. Gen. Stat. § 4b-21(c), the SPRB met on November 17, 2005 to  consider approval of the Agreement.  During the course of that meeting, the SPRB allowed town officials and two members of the public to make presentations.  It then voted unanimously to approve the Agreement.  The events of the November 17, 2005 meeting were memorialized and made public in the SPRB’s minutes.

Subsequently, the two members of the public who made presentations at the November 17, 2005 meeting filed an appeal under the Freedom of Information Act (“FOIA”),3 claiming that the SPRB’s approval of the Agreement was improper because it occurred in executive session.  Thereafter, on March 27, 2006, the SPRB voted in open session to ratify its approval of the Agreement.  On the record, the SPRB stated that it did not believe that its original vote was improper, and made clear that the vote was based on the same record that existed at the time of its November 17, 2005 vote.    

You have asked whether, in light of the SPRB’s March 27, 2006 vote, which took place after the legislative Committees’ respective approvals of the Agreement, you are required to submit the Agreement to the Committees for a second time.  Your question appears to be based on the language set forth in Conn. Gen. Stat. § 4b-21(d), which provides that:

Upon approval of the proposed action of the Commissioner of Public Works by said secretary [of OPM] and board, said commissioner shall request approval of such action by said joint standing committees [on Finance and GAE].  The committees shall approve or disapprove such action within fifteen days after receipt of the request.  If a committee does not act on a request within that time the request shall be deemed to be approved by the committee.

Conn. Gen. Stat. § 4b-21(d).

Because the SPRB’s March 27, 2006 vote ratified its November 17, 2005 vote and thus related back in time to that earlier vote, which preceded the Committees’ approval of the Agreement, we conclude that it is unnecessary for the Committees to consider this matter again.  We also conclude that even if the SPRB’s March 27, 2006 vote did not relate back in time to its original approval, it would still be unnecessary to seek legislative approval for a second time because where, as here, the SPRB’s vote was based on the same record that existed at the time of the earlier vote and did not condition or otherwise alter the nature of the prior approval or involve any changes to the Agreement, a second round of approvals by the Committees is not required under Conn. Gen. Stat. § 4b-21(d).      

It is well-settled that a ratification relates back in time to the original, intended action.  Black’s Law Dictionary defines ratification as “[c]onfirmation and acceptance of a previous act, thereby making the act valid from the moment it was done.  Black’s Law Dictionary (West Eight Ed. 2004) (Emphasis added).  A ratification “is equivalent to a previous authorization and relates back to [the] time when [the] act ratified was done. . . .”  Black’s Law Dictionary (West Abridged Fifth Ed. 1983).

The cases that have discussed whether a particular act may be ratified  have generally looked to see whether the original act was ultra vires and thus void ab initio or merely “voidable.”  If the original act is deemed to have been ultra vires or “void,” the act is deemed a nullity and ineffective from its inception and thus not susceptible to ratification.  If, on the other hand, the original act is “voidable,” it may be ratified by a subsequent act and the ratification will relate back in time to the original, potentially voidable act.  See, e.g., Ianotti v. Ciccio, 219 Conn. 36, 44 (1991) (noting that a “voidable”, as opposed to a “void,” deed is susceptible of ratification); Treglia v. Zanesky, 67 Conn. App. 447 (2001) (same).    

The Connecticut Supreme Court has recognized the distinction between “void” and “voidable” acts in a number of different contexts.  See Carabetta v. Carabetta, 182 Conn. 344 (1980) (holding that a couple's failure to obtain a marriage license rendered their marriage “dissoluble” rather than “void”); Perlstein v. Perlstein, 152 Conn. 152, 156 n.2 (1964) (“Where the marriage sought to be annulled is voidable, as distinguished from being ‘void,’ it is generally agreed that the marriage status does persist unless and until a decree of annulment is rendered.”) (citing 4 Am. Jur. 2d, Annulment of Marriage, § 2); cf. Wilson v. Planning and Zoning Comm., 260 Conn. 399 (2002) (holding that where a zone change was “void,” as opposed to “voidable,” due to a commission’s failure to follow mandatory publication and notification requirements, the commission could not retroactively validate the invalid zone change by fixing a new effective date and publishing notice of its decision prior to that date).          

Based on the remedies provided for under FOIA, we conclude that, in the event the SPRB’s original November 17, 2005 approval of the Agreement is deemed to have been in violation of the general requirement that agency meetings and votes take place at open sessions, the SPRB’s original vote would be a “voidable” act that is susceptible of ratification.  Conn. Gen. Stat. § 1-206(b)(2) sets forth the remedies the FOIC may elect to impose when an agency violates the open meeting requirements of the FOIA.  That subsection grants the FOIC broad discretion in this area and permits the FOIC to either confirm or invalidate an agency action:

In any appeal to the [FOIC] under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by [FOIA].  The commission may declare null and void any action taken at any meeting which a person was denied the right to attend and may require the production or copying of any public record.         

Conn. Gen. Stat. § 1-206(b)(2) (Emphasis added). 

By using the term “may” and providing for alternative remedies, the legislature has made clear that the FOIC has the discretion to confirm an agency action, render it null and void, or simply leave it undisturbed.4  The legislature could have stated simply that upon a finding that an agency violated the FOIA’s open meeting requirements, all actions taken during or as a result of the violation shall be void.  By crafting the language in the statute as it did, and providing the FOIC with the discretion to invalidate agency actions or leave them undisturbed, it cannot be said the legislature intended that such actions be deemed ultra vires or void ab initio, and thus a legal nullity from their inception.  Rather, such actions are “voidable” by the FOIC at its discretion and thus susceptible of ratification.5    

This conclusion is further supported by the fact that the legislature has  imposed strict deadlines for appealing agency actions to the FOIC.  In the event a timely challenge is not brought before the FOIC, the agency action cannot be invalidated under FOIA and thus cannot possibly be deemed void ab initio from its inception or of no legal effect.  See, e.g., Wagner v. Beauregard Parish Police Jury, 525 So. 2d 166, 170 (La. Ct. App. 1988) (noting that no purpose would be served by the 60-day deadline for bringing enforcement actions to declare agency actions null and void if agency actions that violated open meeting requirements were an absolute nullity ab initio because void ab initio acts are of no effect from their inception) (quoting Delta Development Co. v. Plaquemines Parish Comm. Council, 451 So.2d 134 (La. Ct. App. 4th Cir.), cert. denied, 456 So.2d 172 (La. 1984)).      

A number of courts from other jurisdictions that have had occasion to address this issue in this context have arrived at similar conclusions based on  similar analyses.  See, e.g., Valley Realty & Development, Inc. v. Town of Hartford, 685 A.2d 292 (Vt. 1996) (holding that because Vermont open meetings law did not automatically render all actions taken at illegal executive sessions null and void, but instead gave courts discretion to enjoin such actions, those actions were not “void” and were susceptible of retroactive ratification and noting that such an approach is consistent with the “majority of decisions from other jurisdictions”) (citing McLeod v. Chilton, 132 Ariz. 9, 643 P.2d 712 (Ariz. Ct. App. 1981); Monroe County v. Pigeon Key Historical Park, 647 So.2d 857, 860 (Fla. Dist. Ct. App. 1994); Board of Educ. Sch. Dist. 67 v. Sikorsky, 214 Ill. App. 3d 945, 574 N.E.2d 736, 740, 158 Ill. Dec. 623 (Ill. App. Ct. 1991); Wagner v. Beauregard Parish Police Jury, 525 So.2d 166, 170 (La. Ct. App. 1988); B.P.O.E. Lodge No. 65 v. City Council of Lawrence, 403 Mass. 563, 531 N.E.2d 1254, 1256 (Mass. 1988); Lawrence County v. Brenner, 582 A.2d 79, 84 (Pa. Commw. Ct. 1990); Neese v. Parish Special Sch. Dist., 813 S.W.2d 432, 436 (Tenn. Ct. App. 1990)); see also Delta Development Co. v. Plaquemines Parish Comm. Council, 451 So.2d 134 (La. Ct. App. 4th Cir.), cert. denied, 456 So.2d 172 (La. 1984) (because statute declared agency actions taken in violation of open meetings law “voidable”, such actions were susceptible of ratification); Houman v. Mayor and Council of the Borough of Pompton Lakes, 382 A.2d 413 (N.J. Super. 1977) (holding ratification had retroactive effect where original action taken in violation of open meetings law was “voidable” under state law); Kline v. Hampton Township, 42 Pa. D. &C. 2d 49 (Pa. Common Pleas Court of Allegheny County 1967) (promotion of police officer at closed meeting was not ultra vires, but “voidable,” and thus subject to ratification).

Based on the reasoning of these decisions and the commonly accepted view that a “ratification” relates back in time to the original act that has been ratified, we conclude that the SPRB’s March 27, 2006 ratification related back in time to its original approval of the Agreement on November 17, 2005.  Because the SPRB’s November 17, 2005 vote preceded the legislative Committees’ respective approvals of the Agreement in late December 2005 and early January 2006, we also conclude, therefore, that there is no need for you to resubmit the Agreement to the Committees.      

In addition, we conclude that Conn. Gen. Stat. § 4b-21(d) does not  require the Commissioner to again seek approval from the legislative Committees in the circumstances of this case because the SPRB’s subsequent approval was based on the same record that was before it at the time of its original vote and did not purport to alter the terms of the Agreement or the nature of its approval in any way.  At its March 27, 2006 meeting, the SPRB voted in open session to ratify its prior approval of the Agreement, based solely on the information that it had before it at the original November 17, 2005 meeting, which information was set forth in the publicly available minutes to that meeting.  In ratifying its approval of the Agreement, the SPRB made clear that it was doing so solely to address an alleged procedural deficiency in its prior vote. The SPRB also stated on the record that it had not received and was not considering or relying upon any information or materials not before it during the November 17, 2005 meeting. 

Under these circumstances, requiring the Commissioner to re-submit the Agreement to the legislative Committees for approval would be a redundant exercise and would elevate form over substance.  See, e.g., Izzo v. Meriden-Wallingford Hospital, 237 Conn. 259, 270 (1996) (refusing to interpret a statute in a way that “would elevate form over substance” and thereby undermine the legislature’s true objectives).  Nothing in the statutory framework suggests that the legislature intended such a result where, as here: (1) the SPRB approved the merits of a transaction in accordance with its statutory authority under Conn. Gen. Stat. § 4b-21(c); (2) both the Commissioner and the legislative Committees reasonably believed that the SPRB had approved the substance of the transaction; (3) the legislative Committees subsequently acted independently to approve the same transaction pursuant to their own statutory authority; and (4) the SPRB subsequently voted again in a public session to approve the same transaction, based on the same record that was before it in its prior vote, solely to address an alleged procedural deficiency in its original approval.          

 

In summary, for the reasons set forth above, we conclude that, under the circumstances of this case, it is unnecessary for you to resubmit the Agreement to the Committees.

  

I trust this opinion responds to your concerns.

 

                                                Very truly yours,

 

 

 

RICHARD BLUMENTHAL



Robert W. Clark
Assistant Attorney General



1 Section 4b-21(c) of the General Statutes provides that:

 

[t]he Commissioner of Public Works may sell, exchange or lease, or enter into agreements concerning, such land, improvement, interest or part thereof, after (1) notifying (A) the municipality or municipalities in which such land, improvement or interest is located and (B) the members of the General Assembly representing such municipality or municipalities, and (2) obtaining the approval of (A) the Secretary of the Office of Policy and Management, (B) the [SPRB] and (C) the joint standing committees of the  General Assembly having cognizance of matters relating to (i) state revenue and (ii) the purchase and sale of state property and facilities. . . . 

 

 [i]f a proposed agreement for such a conveyance has not been submitted to the [SPRB] within three years after the Commissioner of Public Works provides such notice to such municipality and such members of the General Assembly, or if the [SPRB] does not approve the proposed agreement within five years after such notice, the Commissioner of Public Works may not convey such land, improvement or interest without again so notifying such municipality and such members of the General Assembly.

 

Conn. Gen. Gen. Stat. § 4b-21(c).

 

2 Consistent with the directives of Conn. Gen. Stat. § 4b-21, the Agreement provided that it would be effective upon the date the following officials signed the Agreement: (1) an authorized official of the Town of Preston; (2) the Commissioner; (3) the Chairman of the SPRB; (4) the Secretary of the Office of Policy and Management; and (5) the Senate and House Chairs of the legislative Committees.  In addition, the Agreement required, and only became effective upon, approval by the Attorney General as to form.

3 In their FOIA appeal, the complainants seek an order pursuant to Conn. Gen. Stat. § 1-206(b)(2)  declaring the SPRB’s November 17, 2005 approval of the Agreement null and void.  A hearing in that appeal is presently scheduled to take place before the FOIC on April 27, 2006.

 

4 A review of FOIC decisions in this context reveals that the FOIC frequently exercises its discretionary authority not to invalidate agency decisions even where it finds that an agency has run afoul of open meeting requirements.  See, e.g., Carozza v. Carlson, Docket No. FIC 1999-553 (June 28, 2000); Rizzuti v. Mayor of Naugatuck, Docket No. FIC 93-307 (May 25, 1995); Stonington Educ. Ass’n v. Stonington Bd. of Selectmen, Docket No. FIC 94-12 (July 27, 1994); Drury v. West Hartford Bd. of Educ., Docket No. FIC 94-350 (August 9, 1995); Pantaleo v. Branford Police Comm., Docket No. FIC 91-83 (September 25, 1991); Plofsky v. State Ethics Commission, Docket No. FIC 2004-460 (June 22, 2005).  Moreover, the Connecticut Supreme Court has affirmed at least one FOIC ruling that stopped short of invalidating an agency action taken in violation of the FOIA’s open meeting requirements.  See Rose v. Freedom of Information Commission, 21 Conn. 217, 235 (1992).    

5 The Connecticut Superior Court’s unpublished decision in Lizzote v. Town of Enfield, 1999 Conn. Super. LEXIS 2383 (Conn. Super. Aug. 31, 1999) does not require a contrary conclusion.  In that case, the plaintiff sought to enforce a purported settlement agreement with a town planning and zoning commission by arguing, among other things, that the town had implicitly ratified the agreement.  Unlike the SPRB here, the planning and zoning commission expressly denied that it had ratified the agreement.  While the court, in dicta, stated that agency actions that contravene the FOIA are ultra vires, the court did not consider the clear discretionary nature of the FOIC’s authority to invalidate such actions.  In light of the FOIC’s own decisions declining to exercise that discretionary authority, see footnote 4, supra, administrative actions purportedly taken in violation of the FOIA’s open meeting requirements are voidable, not void ab initio or ultra vires.              


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