Attorney General's Opinion

Attorney General, Richard Blumenthal

March 20, 2006

Honorable Donald E. Williams, Jr., Senate President Pro Tem
Honorable James A. Amann, Speaker of the House
Honorable Martin M. Looney, Senate Majority Leader
Honorable Louis C. Deluca, Senate Minority Leader
Honorable Christopher G. Donovan, House Majority Leader
Room 4100
Legislative Office Building
Hartford, CT 06106-1591

Dear Senators Williams, Looney, DeLuca and Representatives Amann and Donovan:

Thank you for your letter of February 1, 2006, seeking my opinion concerning the continuing force and effect of advisory opinions, declaratory judgments, and memoranda of decision issued by the former State Ethics Commission (“the Commission”) in light of the passage of Public Act 05-183 (“the Public Act”), which created the new Office of State Ethics (OSE).  In particular, you ask whether the Commission’s advisory opinions constitute “any order or regulation of a department, institution or agency,” under Conn. Gen. Stat. § 4-38d, addressing the continuing authority of successor agencies’ statutes.  For the reasons set forth below, the Commission’s advisory opinions, declaratory rulings and memoranda of decision continue in force under Section 4-38d(b), unless and until the OSE reconsiders such rulings or opinions.¹ 

In determining the meaning and scope of Public Act 05-183 as it relates to the Commission’s advisory opinions and memoranda, we must look to the Act’s language, history and context.  See, e.g., State v. Patterson, 2005 Conn. Lexis 531 (Conn. December 20, 2005)(“In construing statutes, our fundamental objective is to ascertain and give effect to the apparent intent of the legislature.  In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.")(internal quotation marks omitted); School Administrators of Waterbury v. Waterbury Financial Planning and Assistance Board, 276 Conn. 355, 356 (2005)(“The process of statutory interpretation  involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.”)

Public Act 05-183 does not explicitly address the continuing force of advisory opinions and memoranda of decision issued by the Commission.  As your letter notes, however, Section 2(a) of Public Act 05-183 specifically provides that the OSE shall constitute “a successor agency to the State Ethics Commission, in accordance with the provisions of 4-38d and 4-39.”  Public Act No. 05-138 § 2(a).²  Section 4-38d(b) of the General Statutes provides in relevant part as follows:

Continuance of orders and regulations:  Any order or regulation of a department, institution or agency, or of a division thereof, the functions, powers or duties of which are so assigned or transferred, which is in force at the time of such assignment or transfer, shall continue in force and effect as an order or regulation of the department, institution, agency or authority to which such assignment or transfer is made until amended, repealed or superseded pursuant to law.

Conn. Gen. Stat. § 4-38d(b) (emphasis by italics added). 

In the present circumstances, it is reasonable to conclude that the Commission’s advisory opinions and memoranda of decision are “orders” for purposes of Conn. Gen. Stat. § 4-38d, and that they continue in full force and effect after the effective dates of Public Act 05-183 unless they are “amended, repealed or superseded.”  Indeed, as stated in your letter, your position, as the General Assembly’s leadership, is that the legislature “intended these documents to be ‘orders’ for purposes of subsection (b) of 4-38d.” 

While “order” is not defined in § 4-38d, Black’s Law Dictionary defines the term as “[a] mandate, precept, command or direction authoritatively given; rule or regulation.”  Black’s Law Dictionary 6^th Ed., at 1096. The Commission’s advisory opinions and memoranda are certainly “direction authoritatively given” concerning the meaning and application of the State’s ethics laws, and they bear other sufficient indicia of finality to be considered “orders” within the meaning of § 4-38d. 

Not only did the legislature vest the Commission with authority to issue advisory opinions with regard to the requirements of our ethics laws and to adjudicate complaints concerning violations of those laws, it provided that those decisions and opinions would be final, preserved for future reference and, in some instances, binding.  Advisory opinions were “binding on the commission” until “amended or revoked” and “deemed to be final decisions” for purposes of appeal to the Superior Court.  Conn. Gen. Stat. § 1-81a(3).  Memoranda of decision were similarly deemed by statute to be final decisions of the Commission for purposes of appeal.  Under Conn. Gen. Stat. § 1-81(a), the Commission was required to compile, maintain and preserve its advisory opinions and memoranda of decision.  See Conn. Gen. Stat. § 1-81(a).  Indeed, the Commission was required to preserve its advisory opinions “permanently.”  Conn. Gen. Stat. § 1-81(a)(2).  Thus, the Commission’s advisory opinions and memoranda of decision appear to fall within the meaning of “orders” for purposes of Conn. Gen. Stat. § 4-38d.

This conclusion is consistent with the context, meaning and purpose of Public Act 05-183.  While the Act evinces a clear intent to effect fundamental changes to the Commission’s structure and procedures, and to create a new body, the OSE, there is no indication in its language or history of an intent to erase the Commission’s substantial body of advisory opinions and memoranda of decision concerning the application and interpretation of such laws.  “An amendatory act is presumed not to change existing law further than is expressly declared or necessarily implied.”  Nichols v. Warren, 209 Conn. 191, 201 (1988). 

It would be potentially destabilizing to construe the Public Act as effectively eradicating the entire body of ethical guidance developed over many years by the Commission and relied upon by countless state officials and others.  There is no evidence of any legislative intent to do so.  Indeed, such a result would likely undermine the legislature’s desire, as expressed through the passage of the Public Act, to improve the administration of state ethics laws. 

Accordingly, I conclude that the Commission’s advisory opinions and memoranda of decision are “orders” within the meaning of Conn. Gen. Stat. § 4-38d(b) and, as such, they continue in force and effect until such time as they are amended, repealed or superseded by the OSE or the legislature.³

I hope this opinion responds to your question.  Please do not hesitate to contact me if I can be of further assistance on this or any other matter.