Ethics: 2009-9

ADVISORY OPINION 2009-9

 

Application of General Statutes § 1-80 (b) to a Member of the Citizen’s Ethics Advisory Board

 

Introduction

 

The Citizen’s Ethics Advisory Board issues this advisory opinion at the request of Barbara Housen, general counsel to the Office of State Ethics, who was recently asked whether G. Kenneth Bernhard’s appointment to the Citizen’s Ethics Advisory Board (“Board”) is invalid under General Statutes § 1-80 (b) (2), which prohibits Board members from having “held public office . . . for a three-year period prior to appointment . . . .”[1]     

 

Background

 

            The following facts are relevant to this opinion.  On November 2, 2004, Mr. Bernhard lost his reelection bid for a fifth term as a state representative in the Connecticut General Assembly.  He then served out the remainder of his fourth term, which, under the Connecticut constitution, ended on January 5, 2005, the date his successor was sworn into office.[2]  

 

Roughly three years later, on November 15, 2007, state representative Lawrence F. Cafero, Jr., minority leader of the House of Representatives, issued a letter (dated the same day) appointing Mr. Bernhard as a member of the Board.[3]  Mr. Bernhard’s term of office, according to the letter, “is effective immediately and is for a period of four years, concluding September 30, 2011.” 

 

At the request of the Office of State Ethics, Representative Cafero issued a second letter (titled “CORRECTED LETTER”) on November 15, 2007, once again appointing Mr. Bernhard to the Board, but changing his term’s effective date.  “Your term,” the second letter states, “is effective January 1, 2008 and is for a period of four years, concluding September 30, 2012.”

 

            Mr. Bernhard was subsequently sworn in as a member of the Board on January 14, 2008.

 

            On September 1, 2009, John F. Geida, an attorney representing a respondent in an ethics enforcement action, sent a letter to General Counsel Housen, calling for Mr. Bernhard to be disqualified from the Board immediately, on the ground that he was appointed to it within three years of having held public office, in violation of § 1-80 (b) (2).  Stated Mr. Geida, “whether one reads the date of appointment as November 15, 2007 or the start date of January 1, 2008, the appointment was within three years of Mr. Bernhard serving as State Representative.”[4] 

 

Mr. Geida copied his letter to Representative Cafero, who, eight days later, on September 9, 2009, issued a third letter regarding Mr. Bernhard, this time stating:

 

It has come to my attention that a question has been raised regarding my appointment of G. Kenneth Bernhard to the Citizen’s Ethics Advisory Board.  To the extent that any defect may exist with respect to his appointment, I am, today, appointing G. Kenneth Bernhard to the Citizen’s Ethics Advisory Board to commence serving on the Board immediately and through September 30, 2011.  

 

Questions

 

            Based on those facts, we consider three questions: (1) whether Mr. Bernhard’s original appointment to the Board is invalid under § 1-80 (b) (2); and if so (2) whether his subsequent appointment is valid under the Code of Ethics for Public Officials (“Code”); and (3) whether his actions taken in his capacity as a Board member before his September 9, 2009 appointment are valid. 

 

Conclusion

 

            We conclude as follows: (1) Mr. Bernhard’s original appointment to the Board, by letter issued on November 15, 2007, is invalid under § 1-80 (b) (2); (2) his subsequent appointment to the Board, by letter issued on September 9, 2009, is valid under the Code; and (3) his actions taken in his capacity as a Board member before his September 9, 2009 appointment are valid and legally binding on those affected by them.

 

Analysis

 

1.         Original Appointment

 

            We first address whether Mr. Bernhard’s original appointment is invalid under § 1-80 (b) (2), which provides that no Board member “shall . . . have held public office . . . for a three-year period prior to appointment . . . .”  Two questions stem from that statutory language, the first being whether, by virtue of having been a state representative in the Connecticut General Assembly, Mr. Bernhard is deemed to have held public office.  Because we recently defined the term “public office,” as it is used in § 1-80 (b), “to include . . . elective office—be it municipal, district, state, or federal,”[5] we answer the first question affirmatively.  

 

            Now that we know that Mr. Bernhard held public office—and that he did so until January 5, 2005 (see background section)—the second question is whether his original appointment to the Board was within three years of having held that office (i.e., before January 6, 2008); for if so, it is invalid under § 1-80 (b) (2).  To answer the second question, we must answer a third: For purposes of § 1-80 (b) (2), what was the date of Mr. Bernhard’s “appointment” to the Board?  The possibilities are

 

1.      November 15, 2007, the date that Representative Cafero issued the first two letters regarding Mr. Bernhard;

 

2.      January 1, 2008, the effective date of Mr. Bernhard’s term of office (as stated in Representative Cafero’s second letter of November 15, 2007); and

 

3.      January 14, 2008, the date that Mr. Bernhard was sworn in as a Board member.

 

            To determine which date controls, we look to the meaning of the word “appointment,” as it is used in § 1-80 (b) (2).  Although that word is not defined in the Code or its interpretive regulations, it is well settled that, “[i]n the construction of the statutes, words . . . shall be construed according to the commonly approved usage of the language . . . .”[6]  Thus, “[i]f a statute . . . does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.”[7]

 

            Black’s Law Dictionary (Abridged 6th Ed. 1991) defines “appointment” as “[t]he designation of a person, by the person or persons having authority therefore, to discharge the duties of some office or trust.”[8]  And the American Heritage Dictionary of the English Language (New College Ed. 1981) defines it as “[t]he act of appointing or designating for an office or position.”[9]  Both definitions use variations of the word “designate,” which, according to the latter authority, means “[t]o indicate or specify; to point out.”[10]  “A designation”—noted one judge in the context of addressing the word “appointment”—“is simply the identification of the person chosen; it does not require assumption of the duties of the office.”[11]  The focus, he went on, when interpreting the word “appointment,” “is on the acts of the appointing authority rather than the acts of the appointee.”[12] 

 

            Our Supreme Court said as much in State ex rel. Rundbaken v. Watrous.[13]  There, the court addressed whether the governor’s vacancy appointment of certain individuals to become judges took effect before or after 3:58 p.m., on June 30, 1949, the precise moment of the state senate’s adjournment.[14]  (If before that time, the appointments were invalid.)  According to the court, before 3:58 p.m., while the state senate was still in session, “the governor ‘selected’ the persons to be appointed as judges and ‘caused such selection to be publicly announced’ . . . .”[15]  Sometime after 3:58 p.m. (but on the same day), the governor “executed commissions[16] appointing them to the offices.”[17]  

 

            Discussing the law of appointment, the court explained that where (as was the case there and is so here) “no method of appointment is provided, an appointment does not become effective . . . until the appointing officer by some act or word evinces a final intent to vest the appointee with title to the office.”[18]  Regarding evidence of such intent, the court stated that “[the appointment] should be authenticated in a way that the public may know when and in what manner the duty has been formed,” so as to avoid “all the contingencies and infirmities which are incident to verbal evidence . . . .”[19]   

 

            In applying that law to the facts there involved, the court concluded the governor’s vacancy appointments took effect after 3:58 p.m. (and were thus valid), stating:

 

The mere fact that . . . the governor had [prior to 3:58 p.m.] ‘selected’ the persons he intended to appoint and publicly announced those selections did not constitute appointment.  The commissions [issued after 3:58 p.m.], though not necessary, were definite acts evincing his intent to vest title to the offices in those to whom they were issued, and certainly not before they were issued did the appointments become effective . . . .[20]

   

            Thus, to determine the date of Mr. Bernhard’s appointment to the Board, we are to look for some definite act of Representative Cafero, the appointing authority, evincing his intent to designate (i.e., indicate, specify, identify) Mr. Bernhard for a position on the Board.  That leads us directly to November 15, 2007—the date that Representative Cafero issued the first two letters regarding Mr. Bernhard in which he stated: “Pursuant to the provisions of Public Act 05-183, it is my pleasure to appoint you to the Citizen’s Ethics Advisory Board.”       

 

            Because Mr. Bernhard’s original appointment to the Board was on November 15, 2007, it was within three years of his having held public office—his term of service in the General Assembly having ended on January 5, 2005.  And because Mr. Bernhard was not, by virtue of § 1-80 (b) (2), eligible for appointment at that time, we conclude that his original appointment is, in the words of our Supreme Court, “void.”[21]

 

2.         Second Appointment

 

            Having concluded that Mr. Bernhard’s original appointment to the Board is invalid under § 1-80 (b) (2) and is thus void, the next question is whether his subsequent appointment to the Board, by letter issued on September 9, 2009, is valid under the Code.  Again, in that letter to Mr. Bernhard, Representative Cafero writes that “[t]o the extent that any defect may exist with respect to his appointment, I am, today appointing G. Kenneth Bernhard to the . . . Board to commence serving immediately and through September 30, 2011.”  

 

            Given that it has now been more than three years since Mr. Bernhard held public office—and that § 1-80 (b) (2) no longer prohibits him from being appointed to the Board—the only potential impediment we can discern to the most recent attempt at his appointment is in General Statutes § 1-80 (a), which provides, in relevant part: “No individual shall be appointed to more than one four-year term as a member of the board . . . .”

 

            That brings us right back to the original appointment, or, more particularly, to its legal effect.  As noted above, because, at the time of the original attempt at his appointment to the Board, Mr. Bernhard was ineligible by virtue of the prohibition in § 1-80 (b) (2), his original appointment is void.  The word “void” means “[o]f no legal effect; null.”[22]  It follows that a “void act is one without legal effect.”[23]  In other words, “[a] void act . . . is a nullity.  It confers no authority.”[24]  Thus, here, it is as if (to paraphrase one court) Representative Cafero drafted the original appointment letter on a scratch pad, left it in his home, and never caused it to be released.[25]

 

            Because his original appointment to the Board was of no legal effect whatsoever, Mr. Bernhard’s subsequent appointment represents, for all intents and purposes, his first and only one.  That being the case, his subsequent appointment simply cannot be said to have violated the prohibition in § 1-80 (a)—for such a violation requires more than one appointment.  Based on that fact, and because we can discern no other impediment to the subsequent (i.e., September 9, 2009) appointment, we conclude that that appointment is valid under the Code.

 

3.         De Facto Officer

 

            The final question goes to the validity of Mr. Bernhard’s actions taken in his capacity as a Board member before his September 9, 2009 (valid) appointment, and it requires us to determine the applicability of the “de facto officer” doctrine. 

 

            “The seminal, and still controlling, case on de facto officers in Connecticut is State v. Carroll,”[26] in which our Supreme Court explained: “An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised . . . .”[27]  The court then detailed the four “circumstances under which an officer not legally qualified will be found to be an officer de facto,”[28] the third being relevant here: 

 

Third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some  defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.”[29]

 

And if one serves under those circumstances, his or her

 

acts . . . are valid as to third persons and the public until his title to office is adjudged insufficient, and such officer’s authority may not be collaterally attacked[30] or inquired into by third persons affected. The practical effect of the rule is that there is no difference between the acts of de facto and de jure officers so far as the public and third persons are concerned.[31]

 

            By way of example, in a 1979 opinion, the Connecticut attorney general addressed the validity of an appointment to the State Elections Commission (“Commission”).[32]  He was asked to do so given that the appointee was also a member of the local town committee of a political party, and that there was a statutory provision prohibiting Commission appointees from having “served within the previous three years as a political party officer . . . .”[33]  In his answer, the attorney general first concluded that a member of a political party’s local town committee is a political party officer, and that the appointment at issue was thus void.[34]  He then explained that the appointee had become a de facto officer because he served under the color of a known appointment that was void because of his ineligibility, such ineligibility being unknown to the general public.[35]  The import, according to the attorney general, is that “the acts of this commissioner are valid at least up until this point” (i.e., the point at which his title to office was adjudged insufficient).[36]      

 

            As was the case with the appointee there, Mr. Bernhard qualifies as a de facto officer under State v. Carroll.  He was issued the November 15, 2007 letters of appointment by Representative Cafero (a statutory appointing authority) and was sworn in as a Board member on January 14, 2008—events that “conferred on [him] the legal indicia of title to the [Board] post.”[37]  That said, Mr. Bernhard was serving under the color of a known appointment, albeit void because of his ineligibility, but his ineligibility was unknown to the public.  Accordingly, as a de facto Board member, his actions taken in that capacity before his September 9, 2009 appointment are “valid and legally binding” on those affected by them.[38]

 

By order of the Board,

 

 

Dated_________________                                                _________________________   

Robert Worgaftik, Chairperson

 



[1]Attorney Housen was so asked by John F. Geida, an attorney representing a respondent in an ethics enforcement matter.  He also asked “for a review of the qualifications of each Board member to determine whether . . . all . . . statutorily created restrictions and qualifications regarding Board appointment and membership have been met.”  Letter from John F. Geida to Barbara Housen, general counsel, Office of State Ethics (September 1, 2009) (on file with the Office of State Ethics) (hereinafter referred to as “Geida letter”).  We will not conduct such a review in the context of an advisory opinion.  See Advisory Opinion No. 2009-7 (“[a]dvisory opinions are, in general, provided only to address specific fact situations”).   

[2]See Conn. Const., art. III, § 10.

[3]One member of the Citizen’s Ethics Advisory Board shall be appointed by the minority leader of the House of Representatives.  General Statutes § 1-80 (a).

 

 

[4]Geida letter.

[5](Emphasis added.)  Advisory Opinion No. 2009-4.

[6]General Statutes § 1-1 (a).

[7]State v. Indrisano, 228 Conn. 795, 809, 640 A.2d 986 (1994).

[8](Emphasis added.)

[9](Emphasis added.)

[10]The American Heritage Dictionary of the English Language (New College Ed. 1981).

[11]Winters v. Kiffmeyer, 650 N.W.2d 167, 174 (2002) (Anderson, J., concurring in part and dissenting in part).

[12]Id.

[13]State ex rel. Rundbaken v. Watrous, 135 Conn. 638, 68 A.2d 289 (1949).

[14]Id., 655-56. 

[15]Id., 655.

[16]A “commission” is “[a] warrant or authority or letters patent, issuing from the government, or one of its departments, or a court, empowering a person or persons named to do certain acts, or to exercise the authority of an office . . . .”  Black’s Law Dictionary (Abridged 6th Ed. 1991).

[17]State ex rel. Rundbaken v. Watrous, supra, 655.

[18]Id.  It also stated that “[w]here by constitutional, statutory or other legal provision, it is required that certain steps be taken to make an effective appointment, the general rule is that the appointment becomes complete, beyond the possibility of recall, when the last of the prescribed steps is taken.”  Id.  That was not the case there and is not so here.    

[19](Internal quotation marks omitted.)  Id., 656.

[20]Id.

[21]Furtney v. Zoning Commission, 159 Conn. 585, 596, 271 A.2d 319 (1970); see also Opinions, Conn. Atty. Gen. No. 95-014 (April 7, 1995) (concluding that appointments of four individuals to state board “are void” because they lacked statutorily required experience).     

[22]Black’s Law Dictionary (7th Ed. 1999). 

[23]Arterburn Convalescent Home, Inc. v. Committee on State Payments to Hospitals, 176 Conn. 82, 88, 405 A.2d 48 (1978) (Loiselle, J. concurring).

[24](Internal quotation marks omitted.)  Wilson v. Planning & Zoning Commission, Superior Court, judicial district of New Britain, Docket No. 492224 (July 9, 2003), quoting Hopkins v. Clemson Agricultural College, 221 U.S. 636, 644, 31 S. Ct. 654, 55 L. Ed. 890 (1910).

[25]Catholic Social Service v. Shalala, 12 F.3d 1123, 1125 (D.C. Cir. 1994).

[26]Summitwood Assocs. Phase IV v. Planning Commission, Superior Court, Judicial District of New Haven at New Haven, Docket No. 391584 (August 7, 1998).

[27]State v. Carroll, 38 Conn. 449, 471 (1871).

[28]Furtney v. Zoning Commission, supra, 159 Conn. 595.

[29](Emphasis added.)  State v. Carroll, supra, 472.  

[30]One court explained that the de facto officer doctrine “distinguishes between collateral attacks wherein a plaintiff challenges government action on the ground that the official who took the action was improperly in office . . . and direct attacks wherein the plaintiff challenges the qualifications of the officer, rather than the actions taken.  The doctrine holds that collateral attacks pose too great a threat that past actions of the challenged official would be subjected to wholesale invalidation and thus interfere with orderly government.”  Horwitz v. State Bd. of Med. Exam’r of Colo., 822 F.2d 1508, 1516 (10th Cir. 1987), cert. denied, 484 U.S. 964, 108 S. Ct. 453, 98 L. Ed. 2d 394, 108 S. Ct. 453 (1987).

[31](Internal quotation marks omitted.)  Furtney v. Zoning Commission, supra, 596-97, quoting 43 Am. Jur. 241, Public Officers, § 495.

[32]Advice of Attorney General to State Elections Commission (November 8, 1979).  

[33]Id.

[34]Id.

[35]Id.

[36]Id.; see also Advice of Attorney General to State Elections Commission (September 28, 1979) (concluding that acts of de facto commissioner of State Elections Commission “were valid as to third persons and the public”).     

[37]Jennings v. Woods, 194 Ariz. 314, 332, 982 P.2d 274 (1999).

[38]Id. 



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