Attorney General: Herbert J. Shepardson, Chair, State Marshal Commission, Formal Opinion 2009-010, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

October 12, 2009

 

Herbert J. Shepardson

Chair, State Marshal Commission

765 Asylum Avenue

Hartford, CT 06105

 

Dear Chairman Shepardson:

            You have requested my opinion on whether municipalities may, by town ordinance, dictate the terms under which they will pay for State Marshal work.  These questions arise because the City of New Haven on March 23, 2009 enacted an ordinance requiring State Marshals who wish to serve process for the city to agree to receive payment for their services under a fee schedule and with insurance policy limits established by the City.  In particular, you have asked the following three questions:

1.      Does a municipality have the legal authority to require State Marshals to accept fees lower than those set forth in state statutes when they agree to provide service of process for the municipality?

2.      Do the Connecticut statutes regulating State Marshals preempt a municipality from adopting an ordinance which requires State Marshals to obtain higher levels of liability insurance and indemnification than required by state statute?

3.      Can a municipality require attorneys employed or hired by the municipality to only use State Marshals who agree to its fee and insurance requirements?

 

            For the reasons explained below, we answer these questions as follows:

 

1.      Municipal ordinances may dictate the terms and conditions under which a municipality will use the services of State Marshals to serve the municipality’s civil process as long as the ordinance does not conflict with state law.  Although conflicts between state law and municipal ordinance must be resolved in favor of state law, we perceive no conflict between Connecticut’s State Marshal statutes or State Marshal Commission regulations and New Haven’s ordinance.

2.      State statutes establish maximum service fees that may be charged by State Marshals, and the regulations of the State Marshal Commission establish minimum fees for service of process and executions.  State statutes also specifically allow negotiation over State Marshal fees.  Therefore, municipal ordinances may require State Marshals wishing to perform a municipality’s service work to accept fees established by a municipality as long as the fees are at or below the statutory maximum and at or above the minimum fees established in the State Marshal Commission regulations.

3.      The state statute requiring State Marshals to carry liability insurance establishes minimum insurance coverage requirements.  Nothing in the state statutory or regulatory scheme prohibits a city from requiring marshals to secure higher insurance coverage limits.

Discussion

           

The legislature has expressly authorized municipalities to adopt ordinances governing the exercise of municipal powers. Conn. Gen. Stat. §7-148, 7-157.  Generally, a local ordinance is preempted by a state statute only when the legislature has demonstrated an intent to occupy the entire field of regulation on the matter; East Haven v. New Haven, 159 Conn. 453, 469 (1970); or when a local ordinance irreconcilably conflicts with a state statute. Shelton v. City of Shelton, 111 Conn. 433, 447 (1930).  “Whether an ordinance conflicts with a statute or statutes can only be determined by reviewing the policy and purposes behind the statute and measuring the degree to which the ordinance frustrates the achievement of the state's objectives. " Dwyer v. Farrell, 193 Conn. 7, 14, 475 A.2d 257 (1984)(citations omitted).  As we have advised other client agencies in the past, a municipality can impose requirements on professionals that may exceed statutory or regulatory requirements, so long as the municipal requirements do not conflict with agency regulations or frustrate legislative objectives.  Formal Opinion to Hon. Joseph A. Cermola, Chairman, Bd. Of Examiners For Professional Engineers and Land Surveyors, 85 Op. Atty. Gen. 223 (1985). 

 

            The statutes governing State Marshals, and the regulations adopted by the State Marshal Commission pursuant to Conn. Gen. Stat. § 6-38b(f), do not demonstrate an intent to occupy the entire field of State Marshal fees and insurance requirements.  To the contrary, the statutes contain many provisions that demonstrate the legislature’s intent to allow flexibility in the setting of State Marshal fees and insurance policy limits. 

           

            Conn. Gen. Stat. § 52-261 sets the maximum fees that may be charged by State Marshals for the service of process:

 

“[E]ach officer or person who serves process, summons or attachments shall receive a fee of not more than thirty dollars for each process served.” (emphasis added) 

 

Conversely, Conn. Gen. Stat. § 6-38b(f) specifically delegates to the Commission, in consultation with the State Marshals Advisory Board, the authority to adopt regulations to set “minimum fees for execution and service of process,” (emphasis added), which the Commission has done.   Regs., Conn. State Agencies § 6-38b-10 (2009).  Additionally, the legislature has expressly allowed for negotiation of State Marshal fees. Section 6-38a(a) provides that each State Marshal shall provide services as an “independent contractor compensated on a fee for service basis, determined, subject to any minimum rate promulgated by the state, by agreement with an attorney, court or public agency requiring execution or service of process.” (emphasis added)

 

            The legislature did not intend, therefore, to prohibit any entity from negotiating fees to be paid to State Marshals for service of process work.  To the contrary, state statutes specifically authorize individual agreements between State Marshals and their customers, both public and private, regarding the fees to be paid for a State Marshal’s services. A municipal ordinance such as New Haven’s, requiring State Marshals who wish to bid on the municipality’s work to accept payment according to a municipal fee schedule, does not conflict with state law and is not preempted as long as the fees established by the municipality are at or below the statutory maximum and at or above the State Marshal Commission minimum.

 

Similarly, the legislature has only established minimum insurance coverage limits for marshals, but has not limited Marshals’ customers from requiring greater insurance coverage.  Section 6-30a(a) clearly provides that each State Marshal "shall carry personal liability insurance for damages caused by reason of such marshal's tortious acts in not less than the following amounts." (emphasis added).  There is nothing in the statutes to suggest that entities entering into contracts with marshals are barred from requiring additional insurance limits.  Nor would a municipal ordinance requiring insurance coverage above the statutory minimum conflict with or be preempted by state law.

 

Moreover, because the attorneys who directly utilize the services of marshals are acting on behalf of their client, a municipal ordinance such as New Haven’s does not interfere with any contractual relationship between an attorney and a State Marshal.  Courts have consistently held that attorneys act as agents for their clients, who are the principals.  Comm'r v. Banks, 543 U.S. 426, 436 (2005); Klotz v. Xerox Corp., 2009 U.S. App. LEXIS 12124 at *4 (2d Cir. N.Y. June 5, 2009); Stone v. Town of Westport, 2007 U.S. Dist. LEXIS 2863 at * 27 (D. Conn. Jan. 12, 2007) Doe v. Odili Techs., 1997 U.S. Dist. LEXIS 23268 at *13 (D. Conn. May 28, 1997) (citing Jenkins v. Gen. Motors Corp., 164 F.R.D. 318, 320 (N.D.N.Y.), aff'd 101 F.3d 1392 (2d Cir. 1996)).  Because the attorneys performing work for a municipality have no greater authority than the municipality itself in arranging for State Marshal services, and because those attorneys themselves have chosen to accept work for the municipality under the terms of municipal contracts, there are no contractual concerns presented by a municipal ordinance requiring a municipality’s attorneys to use State Marshals who have agreed to the conditions imposed by the municipality on service fees and insurance coverage.

 

Finally, we see no conflict between the New Haven ordinance and the state's sovereignty.  State statutes providing State Marshals with qualified and/or statutory immunity (Conn. Gen. Stat. § 6-30a(b), §6-38a(b)) are not in any way affected by a municipal ordinance, such as New Haven’s, which sets fee limits or insurance coverage requirements.  The State Marshal Commission fully retains its powers to appoint, discipline or audit State Marshals.  Conn. Gen. Stat. §6-38b, § 6-38e. 

 

In summary, there is no legal impediment to the City of New Haven requiring State Marshals to comply with the City’s fee schedule or insurance requirements, provided New Haven does not impose any requirement irreconcilable with state statutes or regulations.

 

I hope this answers your questions.

 

     Very truly yours,

 

     RICHARD BLUMENTHAL
    


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