Attorney General's Opinion
Attorney General, Richard Blumenthal
December 12, 2007
Judicial Review Council
Thank you for your letter requesting my opinion on two questions: (1) whether the Judicial Review Council (“the Council”) has jurisdiction over misconduct committed by acting workers’ compensation commissioners appointed on a per diem basis pursuant to Conn. Gen. Stat. § 31-280(a) (hereinafter “acting compensation commissioners”); and (2) whether the Council has jurisdiction over misconduct committed by an individual formerly serving as an acting compensation commissioner, and evidently still meeting the criteria for such an appointment, but whom the chairman of the Workers’ Compensation Commission no longer intends to employ in that capacity.
My answer to both questions is in the affirmative. As explained herein, the Council’s exercise of jurisdiction over acting compensation commissioners, including those no longer serving in such a capacity but still eligible to do so, is permitted by the Council’s enabling statutes. Exercising jurisdiction over such individuals would promote the public’s confidence in the impartial and effective administration of justice and provide ethical guidance to present and future compensation commissioners.
Workers’ compensation commissioners are appointed in one of two ways. General Statutes § 31-276 provides that the Governor shall nominate compensation commissioners, who shall be appointed by the General Assembly. In addition, General Statutes § 31-280(a) permits the chairman of the Workers’ Compensation Commission, within available appropriations, to “appoint acting compensation commissioners on a per diem basis from among former workers’ compensation commissioners or qualified members of the bar of this state.”
The Council’s jurisdiction over workers’ compensation commissioners, set forth in Chapter 872a of the General Statutes, is not expressly or implicitly limited to compensation commissioners nominated by the Governor and appointed by the General Assembly, as opposed to acting compensation commissioners. To the contrary,
As a matter of policy, it would be anomalous and potentially harmful to construe the Council’s disciplinary jurisdiction to exclude acting compensation commissioners, who possess authority and responsibilities equivalent in all respects to those exercised by compensation commissioners appointed by the General Assembly. The Council’s enabling statutes do not suggest any legislative intent to permit one compensation commissioner to commit misconduct without the possibility of discipline, while another compensation commissioner would be subject to discipline for the very same act simply based on differences in the method of appointment. "It is . . . a rule of statutory construction that those who promulgate statutes or rules do not intend to promulgate statutes or rules that lead to absurd consequences or bizarre results. " State v.
The legislative history of Public Act 92-160, which placed compensation commissioners under the Council’s jurisdiction, supports the conclusion that the Council may discipline misconduct committed in the exercise of the authority of a compensation commissioner, without regard to how that authority was bestowed. See Senate Sess.
In sum, therefore, I conclude that acting compensation commissioners appointed on a per diem basis pursuant to Conn. Gen. Stat. § 31-280(a) are fully subject to the Council’s jurisdiction to the same extent as compensation commissioners appointed by the General Assembly pursuant to Conn. Gen. Stat. § 31-276.
In response to your second question, I also conclude that the Council retains jurisdiction to investigate and, if appropriate, punish misconduct committed by a former acting compensation commissioner while he was a commissioner, whom the chairman of the Workers’ Compensation Commission no longer intends to employ in such a capacity, but who continues to meet the statutory eligibility criteria for future appointments.1
Nothing in the Council’s jurisdictional provisions explicitly precludes the Council from exercising jurisdiction in the circumstances you outline. As noted,
The exercise of jurisdiction in these circumstances is supported by compelling policy considerations. The Supreme Court has explained the purposes of the Council’s disciplinary function in the closely related context of judicial discipline:
The purpose of sanctions in cases of judicial discipline is to preserve the integrity and independence of the judiciary and to restore and reaffirm public confidence in the administration of justice. The discipline we impose must be designed to announce publicly our recognition that there has been misconduct; it must be sufficient to deter the judge from again engaging in such conduct; and it must discourage others from engaging in similar conduct in the future. Thus, we discipline a judge not for purposes of vengeance or retribution, but to instruct the public and all judges, ourselves included, of the importance of the function performed by judges in a free society. We discipline a judge to reassure the public that judicial misconduct is neither permitted nor condoned. We discipline a judge to reassure the citizens that the judiciary of their state is dedicated to the principle that ours is a government of laws and not of men.
In re Dean, 246 Conn. 183, 206 (1998)(internal citation and quotation omitted); see also Conn. Gen. Stat. § 51-51g (providing that the Council was established to, inter alia, foster the dignity and integrity of the judiciary).
These purposes would be significantly undermined if an acting compensation commissioner is immunized from discipline for official misconduct simply because the current chairman of the Workers Compensation Commission indicates that he no longer intends to utilize his services. This result would not only invest the chairman with inappropriate control over the Council’s jurisdiction, but also potentially deprive the public of the above-described benefits flowing from the Council’s vigilant enforcement of its statutory charge.
Moreover, the stated intention of the chairman not to further employ the individual in question as an acting compensation commissioner does not moot the complaint against him because the Council retains the ability to issue effective relief. See, e.g., State v. Fabricatore, 89 Conn. App. 729, 743 (2005)(matter moot where the tribunal can no longer grant practical relief). Of course, certain remedies normally available to the Council, namely suspension and recommendation of removal, would not be available in a case involving a currently inactive compensation commissioner. However, the Council would retain the authority to issue a censure pursuant to Conn. Gen. Stat. § 51-51n(a), which would serve the practical and important purposes of bolstering public confidence in the fairness and integrity of the workers’ compensation system and providing ethical guidance to current and future compensation commissioners. In a closely related context, courts have held that the availability of relief furthering these purposes provides continuing jurisdiction to discipline retired judges. See, e.g., In re Johnstone, 2 P.3d 1226, 1233 (Alas. 2000); In re Cox, 658 A.2d 1056, 1057 (Me. 1995); In re Yaccarino, 502 A.2d 3, 30-31 (N.J. 1985). Notably, the Connecticut Supreme Court has affirmed the Council’s censure of a judge whose term expired without renomination during the pendency of the Council’s disciplinary proceedings. See In re Flanagan, 240 Conn. 157, 160 n. 1 (1997).
I also note that the individual in question apparently still meets the statutory eligibility criteria for appointment as an acting compensation commissioner. See Conn. Gen. Stat. § 31-280(a)(providing that former workers’ compensation commissioners or qualified members of the bar of this state are eligible for appointment as acting workers compensation commissioners.) Thus, despite the present Compensation Commission chairman’s intent not to again appoint him or her as an acting compensation commissioner, it is possible that a future chairman might do so. These facts provide additional support for the conclusion that the Council can and should exercise its jurisdiction. See Statewide Grievance Committee v. Burton, 282 Conn. 1, 14 (2007)(concluding that Statewide Grievance Committee retained authority to discipline disbarred attorney and holding: “The defendant has not been disbarred for life, but for a specified period of time. Accordingly, she may seek readmission to the bar when her term of disbarment expires and adjudication of her predisbarment conduct will provide the plaintiff with a more complete and accurate record of her background and character if she applies for readmission.”).
I hope the foregoing responds to your concerns. Please do not hesitate to contact me if I can be of further assistance on this or any other matter.
Very truly yours,
1 Your question does not involve, and this opinion does not address, the Council’s jurisdiction over a former acting compensation commissioner who no longer meets the criteria for appointment, for example where a former acting compensation commissioner qualified to serve in such a capacity by virtue of his membership in the bar resigns from the bar.