Attorney General's Opinion
Attorney General Richard Blumenthal
July 8, 1994
James A. Gasecki
Sheriffs' Advisory Board
84 Wadsworth Street
Hartford, CT 06106
Dear Mr. Gasecki:
In your letter of March 15, 1994, you indicate that in two lawsuits, Kennedy St. George v. Mak, Case No. 5:92-CV-00587(JAC), United States District Court, District of Connecticut, and Lewis v. Mak, Case No. 5:92-CV-00593(JAC), United States District Court, District of Connecticut, the Attorney General's Office has advised the High Sheriff of Fairfield County and several persons in his department that it would be inappropriate for the Attorney General's Office to continue to represent them in those cases. Consequently, on behalf of the Sheriffs' Advisory Board you have asked for legal advice on the following question:
Conn. Gen. Stat. 5-141d provides:
A statute must be applied as its words direct. River Dock and Pile, Inc. v. O. and G. Industries, 219 Conn. 787, 805 (1991). "[I]f the language is clear and unambiguous, there is no room for construction. New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 485 (1975); Kelenen v. Rimrock Corporation, 207 Conn. 599, 606, 542 A.2d 720 (1988)." Id. Conn. Gen. Stat. 5-141d clearly provides a scheme whereby the state will accept responsibility for the defense of its officers and employees when they are sued by a third party regarding a matter in which they were acting on behalf of the state. The express language of the statute requires the state to provide for the defense of a state officer or employee when he is sued concerning a matter arising out of actions which occurred while of the officer or employee was acting in the discharge of his duties or in the scope of his employment and such actions are found not to have been wanton, reckless or malicious. The statute also provides that it is the Attorney General who determines the extent of the state's responsibility to do so. Even where a state employee or official is entitled to state-financed legal representation we have previously opined that "it is the Attorney General who determines in advance whether and in what manner the state will provide representation." 89 Conn. Op. Atty. Gen. 83 (1989).
Conn. Gen. Stat. 5-141d provides that generally the "state" will provide for the defense of a state officer or employee when sued. However, the "state" is not "required to provide for such a defense whenever the attorney general, based on his investigation of the facts and circumstances of the case, determines that it would be inappropriate to do so and he so notifies the officer, employee or member in writing." Such a determination is made on a case-by-case basis, and individual defendant by individual defendant basis. As the statute requires, the Attorney General must investigate the facts and circumstances of each case and determine whether or not the state officer or employee is entitled to a state-financed defense. Therefore, the decision whether or not the "state" should finance the defense of a state officer or employee is one reserved to the Attorney General and the Attorney General alone.
Once the Attorney General has determined whether it is or is not appropriate for the "state" to provide a defense, then the position of the state has been established. The Sheriffs' Advisory Board has no authority under Conn. Gen. Stat. 5-141d to overrule the Attorney General's decision. Nor do the statutes (Chapter 78) governing sheriffs and the Board provide any authority to the Board to usurp the authority of the Attorney General to determine whether or not the state should provide a defense to a state officer or employee. A public body can only act within the scope of the powers and duties which the law prescribes for them. Rogers v. County Commissioners of New Haven County, 141 Conn. 426, 429 (1954).
When the Attorney General has determined that the state will provide for the defense of a state officer or employee but that the Attorney General's Office cannot do so directly because of a conflict of interest or other reasons, then the state agency involved will be called upon to appropriate funds to provide such a defense.1 Since Conn. Gen. Stat. 6-32b provides that the Sheriffs' Advisory Board "shall receive appropriation for the high sheriffs . . . and allocate such appropriation among the high sheriffs, as required" the Board has the authority to appropriate funds for the defense of a sheriff where the Attorney General has determined that the state should provide such a defense. Such an expenditure by the Board is proper since the Attorney General, the officer charged by statute with the authority to make such a determination, has determined that state funds should be utilized to provide for the sheriff's defense.
When the Attorney General has determined that it would be inappropriate for the state to provide for the defense of an officer or employee either through the Attorney General or at state expense through the hiring of outside counsel, no authority exists for the Sheriff's Advisory Board to appropriate state funds for such purpose. "Absent express statutory authorization, a state agency may not obtain, nor spend state funds for, legal services on its own initiative either for its own purposes or for the benefit of an employee." 89 Conn. Op. Atty. Gen. 83 (1989). State funds can only be utilized to provide for the defense of a state officer or employee where the Attorney General has made the determination pursuant to Conn. Gen. Stat. 5-141d, that the state must do so. A public officer can expend state funds only in conformance with the manner prescribed by law. Arminio v. Butler, 183 Conn. 211, 222 (1981).
In conclusion, the Sheriffs' Advisory Board has no authority to appropriate funds for the defense of sheriffs, deputy sheriffs and special deputy sheriffs in lawsuits brought against them in their individual capacities after the Attorney General has determined that providing a defense would be inappropriate pursuant to Conn. Gen. Stat. 5-141d(b).
Very truly yours,
Jane S. Scholl
Associate Attorney General
Footnote: 1 Even where the Attorney General provides a defense directly, the expenses of such litigation are charged to the agency involved.