Attorney General's Opinion
Attorney General, Richard Blumenthal
December 19, 2007
Brian S. Sigman
Board of Education and Services for the Blind
184 Windsor Avenue
Windsor, CT 06095
Dear Mr. Sigman:
You have asked for my opinion on the authority of the Board of Education and Services for the Blind (BESB) to choose the brand name products to be sold in vending machines placed on public property by BESB pursuant to Conn. Gen. Stat. § 10-303. BESB has five vending machine locations on Town of
While the statute gives BESB broad discretion in placing and stocking vending machines with particular products, we recognize that the current contract, which will end on
There are two sets of answers to this question. As a purely legal matter, BESB's statutory power encompasses product or brand decisions. As a matter of sound public policy, we strongly recommend that BESB consult with the towns, which reflect consumer preferences in products, and heed their view as to specific brand names to be offered.
We reach the following conclusions:
1. BESB has statutory authority to operate vending machines at any municipal or state vending machine location. Once BESB exercises its statutory authority to operate vending machines pursuant to Section 10-303, and negotiates with a municipality the types of articles that will be sold in the vending machines, BESB has the authority to decide the specific brand names of articles sold at the location. As a matter of policy, however, we recommend that BESB consult with municipalities, consistent with its contractual obligations, on the specific brand names of products that will be sold in each town.
2. In this case, as a result of a public, competitive bidding process, the Coca Cola Bottling Company of
3. BESB receives significant revenues from its vending contract with Coca Cola and uses those revenues to support programs for blind and visually impaired children and adults, including in its Business Enterprise Program, which enables blind entrepreneurs to operate food service facilities. In addition, BESB has allowed the proceeds from vending sales at locations associated with children and students in
4. The sale of Pepsi Cola at any BESB vending location could lead to legal action over BESB’s current contract with Coca Cola, possibly jeopardizing this source of funding for its programs.
5. There is no statutory requirement that BESB have an exclusive contract with a vendor to sell and distribute products at BESB’s vending locations. We recommend that BESB consider issuing an RFP for multiple contractors to sell and distribute products at BESB vending locations when the current contract with Coca-Cola expires. The use of multiple contractors or other different arrangements could allow BESB to give each municipality the choice of a vendor for the products to be sold in each town while maximizing revenues to BESB and school funds.
Since 1959, BESB has been authorized under
In 1999, BESB issued Request for Qualification (RFQ) 9899-2 to determine which vendors would be eligible to bid for RFP 9899-23 for a single, statewide vending machine contract.1 The contracting process was open, competitive and well publicized. Four pre-qualified vendors were offered the opportunity to submit proposals and three did so. You have informed this office that BESB twice contacted Pepsi in an attempt to get Pepsi to bid on the contract, but Pepsi, because of particular business conditions at the time, did not do so. As a result of that process, on
The contract gives Coca Cola the exclusive right to sell and distribute vended products through vending machines at facilities chosen by BESB pursuant to Section 10-303. According to the contract, no competitive products are to be sold, dispensed or served anywhere at a BESB managed facility. Products vended are to be nationally known brands unless prior approval is received from BESB. Under the terms of the contract, Coca Cola pays BESB thirty-five cents of every dollar of gross sales from the vending at BESB locations. You have informed this office that the revenue BESB collects under this contract from more than1600 vending machines in
In 2006, BESB decided to exercise its statutory right to operate vending machines at locations in
The Town of
This office does not agree with the legal conclusions contained in the memorandum prepared by Cummings & Lockwood.
(a) The authority in charge of any building or property owned, operated or leased by the state or any municipality therein shall grant to the Board of Education and Services for the Blind a permit to operate in such building or on such property a food service facility, a vending machine or a stand for the vending of newspapers, periodicals, confections, tobacco products, food and such other articles as such authority approves when, in the opinion of such authority, such facility, machine or stand is desirable in such location….
(d) The Board of Education and Services for the Blind may disburse state and local vending machine income to student or client activity funds, as defined in section 4-52 (emphasis added).3
Section 10-303 also gives municipalities and state agencies the authority to choose the “articles” to be sold at a particular location. The word “articles,” as used in Section 10-303 refers to a generic class of products as enumerated in Section 10-303 -- “newspapers, periodicals, confections, tobacco products, food and other such articles” -- and not to the particular brand names of the types of articles to be sold. In construing a statute, “[i]f two or more words are grouped together, it is possible to ascertain the meaning of a particular word by reference to its relationship with other associated words and phrases.” State v. Szymkiewicz, 237
On the other hand, the legislature specifically gave BESB the authority “to operate” vending machines at municipal and state locations to collect revenues to assist BESB in fulfilling its statutory responsibilities to blind and visually impaired children and adults.
As a matter of policy, BESB may wish to consult with municipalities on the specific brand names that will be sold in each town, consistent with its contractual obligations and authority. Presently, however, the sale of Pepsi Cola at any BESB vending location during its current contract with Coca Cola could lead to legal action, possibly jeopardizing this source of funding for BESB's programs.
Section 10-303(d) specifically grants BESB the authority to disburse state and local vending machine income to local student or client activity funds as defined in section 4-52 rather than utilize it for programs for the blind. Although the legislature has allowed BESB to assist local school activities with revenue from BESB’s vending machine locations, that legislative grant of authority to BESB in no way affects BESB’s statutory authority to operate or manage its vending machines at any BESB location. In fact, we understand that BESB’s vending partnership with municipalities and school districts has significantly benefited programs for blind adults and children, while increasing revenues for school activity funds.
Finally, we note that there is no statutory requirement that BESB have an exclusive contract to sell and distribute products at BESB’s vending locations. As a matter of policy, we recommend that BESB consider issuing an RFP for multiple contractors or other contractual arrangements to sell and distribute products at BESB vending machines when the current contract with Coca Cola expires. Other contracting arrangements may allow BESB to give each municipality the choice of a vendor for the products to be sold in each town while maximizing its own revenue and revenue for school activity funds from this enterprise.
We trust the foregoing responds to your concerns.
Very truly yours,
1 In informal opinions to the Executive Director of BESB dated
2 Appendices Re: Board of Education and Services for the Blind: Vending Machine Operations, Legislative Program Review & Investigations Committee, Staff Findings and Recommendations (
3 Section 4-52 provides:
As used in sections 4-53 to 4-55, inclusive, trustee account means any account operated in any state educational institution or welfare or medical agency for the benefit of the employees or students of such institution or agency, including so-called clients’ funds in state hospitals, the revenue of which is derived form the operation of canteens, vending machines, dramatics, recitals, student activity fees, membership fees, deposits, gifts, donations, bequests or any other legal source compatible with the good government of such institution or agency.