Attorney General's Opinion
Attorney General, Richard Blumenthal
February 4, 2005
Honorable Theresa Lantz
Department of Correction
24 Wolcott Hill Road
Wethersfield, CT 06109
Dear Commissioner Lantz:
You have asked for a formal opinion on whether you have the authority to continue a long standing practice of allowing "local law enforcement agencies and certain state agencies to use Department of Correction (DOC) firing ranges in order to maintain appropriate certifications for their officers." These ranges are located on the grounds of the Cheshire and Enfield Correctional Institutions." In the past, these agreements were informal, but you indicate that you believe formal written agreements are necessary if the practice is to continue. For reasons amplified below, it is our opinion that you have the authority to continue this practice, subject to several conditions, which are also delineated below.
Conn. Gen. Stat. § 18-81 provides, in part, that "The Commissioner of Correction shall… be responsible for the overall supervision and direction of all institutions, facilities and activities of the department." (Emphasis added.) The word "facility" has been defined to mean, "something created to serve a particular function." (See Webster's II New College Dictionary.) In our view, the firing ranges on the grounds of correctional institutions are clearly "facilities," as that word is used in Section 18-81, "created to serve [the] particular function" of training Department of Correction personnel in the safe and professional use of firearms.
It is well established that "central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves." Pell v. Procunier, 417 U.S. 817, 823 (1976). Clearly your duty to preserve order and safety within the institutions under your control in conjunction with the provisions of Section 18-81 giving you "overall supervision… of the facilities… of the department" empowers you to operate such facilities so that they promote your public safety duties.
We also note that Conn. Gen. Stat. § 18-81b provides that "The Commissioner of Correction may provide to the public such informational and educational experiences as are consonant with the department's mission and goals…" In this context it is our view that local area and state law enforcement officers are included within the word "public" vis a vis DOC staff and thus are eligible for the educational experience encompassed within Sec. 18-81b.
According to your letter, the continued use of these facilities by law enforcement officers contributes to the promotion of public safety. You indicate that the state and local agencies permitted to use these facilities are agencies the Department may need to call upon for assistance in the event of rioting, fires or other emergencies. As you note in your letter, it is in "the interests of the State of Connecticut and the Department of Correction to be confident that those responding to our call are technically and legally certified to offer all possible assistance." Courts would consider your judgment as a correctional expert on this matter. See, Washington v. Meachum, 238 Conn. 692, 733-34 (1996). In view of these factors, we conclude that you have the authority to enter into agreements to permit local and state agencies to use firing ranges on correctional department grounds.
We also agree with you that the continued use of these facilities should be accompanied by a written agreement. We note that you attached to your request for advice a letter from the Commissioner of Public Works which indicates that the appropriate mechanism for memorializing the arrangement is through a license agreement. Under a license agreement, the non-state entity does not acquire any right, title or interest of any kind in the premises or facilities involved. Rather, the non-state entity simply receives permission to use the facility.
In our opinion, the license agreement with the local law enforcement agencies should contain at a minimum the following conditions:
- The Department of Correction, acting through you or your designee, may cancel or modify the terms of the agreement unilaterally at any time. In such event, the department will attempt to notify the non-state entity but shall not be obligated to do so prior to such change.
- The local law enforcement agency shall carry liability insurance in an amount designated by you or your designee which "saves harmless" the State of Connecticut from any claims, suits or demands that may be asserted against it by reason of any act or omission of the licensee. Certificates of such insurance shall be filed with DOC prior to the effective date of the license agreement.
- If any damage is done to the property or facility by members of a local law enforcement agency, the local law enforcement agency shall pay for repairs as determined by the Department of Correction and the Department of Public Works.
- No use of the premises or facilities shall be permitted which in your sole judgment interferes with DOC use.
With respect to other state agencies, a memorandum of understanding setting forth the terms under which the firing ranges may be used is sufficient to outline the parties' agreement.
If you wish our help in drafting this license agreement, please let us know.
Very truly yours,
RICHARD BLUMENTHAL
ATTORNEY GENERAL
Henri Alexandre
Assistant Attorney General