Attorney General's Opinion Attorney General, Richard Blumenthal April 17, 2006 The Honorable James T. Fleming Dear Commissioner Fleming:
You have requested an opinion as to whether, in light of the State Properties Review Board’s (the “SPRB”) 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 The following background is relevant to your question. Under the Agreement, the State agreed to convey to the Town of
Attorney General's Opinion
Attorney General, Richard Blumenthal
April 17, 2006
The Honorable James T. Fleming
Dear Commissioner Fleming:
You have requested an opinion as to whether, in light of the State Properties Review Board’s (the “SPRB”)
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
The following background is relevant to your question. Under the Agreement, the State agreed to convey to the Town of
Prior to the time the Committees approved the Agreement, and also pursuant to
Subsequently, the two members of the public who made presentations at the
You have asked whether, in light of the SPRB’s
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.
Because the SPRB’s
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
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
Based on the remedies provided for under FOIA, we conclude that, in the event the SPRB’s original
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.
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 (
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
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
In addition, we conclude that Conn. Gen.
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
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,
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.
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
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.
5 The Connecticut Superior Court’s unpublished decision in Lizzote v. Town of
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