Attorney General's Opinion

Attorney General, Richard Blumenthal

June 19, 1995

Mr. George Precourt |
Executive Director
Board of Education and Services for the Blind
170 Ridge Road
Wethersfield, CT 06109

Dear Mr. Precourt:

You have asked for an opinion regarding whether the payments for educational and other services which the Board of Education and Services for the Blind ("BESB") makes for the benefit of blind or visually impaired students and blind or visually impaired students with additional disabilities, pursuant to Conn. Gen. Stat. §10-295(a) and (b), respectively, are discretionary expenditures or in the nature of mandatory entitlements. You note that treating one or both as entitlement programs would have important fiscal and administrative impacts on BESB and its provision of services.

Conn. Gen. Stat. §10-295(a) provides in pertinent part that

[a]ll residents of this state, regardless of age, who, because of blindness or impaired vision, require special education programs, on the signed recommendation of the director of the board of education and services for the blind, shall be entitled to receive such instruction and for such length of time as is deemed expedient by said director.... The expense of such instruction shall be paid by the state to an amount not exceeding six thousand four hundred dollars for each of such persons in any one state fiscal year.... All educational privileges prescribed in part V of Chapter 164, not inconsistent with the provisions of this chapter [Conn. Gen. Stat. §§10a-67 et seq.] shall apply to the pupils covered by this subsection....

(Emphases added).

Conn. Gen. Stat. §10-295(b), in turn, provides in pertinent part that

[s]aid board may expend funds up to fourteen thousand dollars per fiscal year per child for the purpose of sending children who are both blind or visually impaired and deaf, or blind or visually impaired with other severe physical handicaps, to specialized facilities within or outside the state furnishing proper facilities for education of such children.... Said board may determine if such children should be sent to such out-of-state places and may promulgate such regulations as it deems necessary to carry out the purpose and intent of this subsection....

(Emphases added).1

It is well settled that the fundamental objective of statutory construction is to ascertain and give effect to the apparent intent of the legislature. Concept Associates, Ltd. v. Board of Tax Review of the Town of Guilford, 229 Conn. 618 (1994). In discerning such intent, courts look to the words of the statute itself, the legislative history, the circumstances surrounding its enactment, the legislative policy it was designed to implement and the relationship of the statute to existing legislation and common law principles governing the same subject matter. Town of North Haven v. Planning and Zoning Commission of the Town of Hamden, 220 Conn. 556 (1991); Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757 (1993). In interpreting the language of a statute, words must be given their plain and ordinary meaning unless the context indicates a different meaning was intended, because it is generally assumed that the language expresses the legislature's intent. Oller v. Oller-Chiang, 230 Conn. 828 (1994).

As noted, while Conn. Gen. Stat. §10295(a) states that blind residents "shall be entitled" to receive such instruction, which "shall be paid" by the state "to an amount not exceeding" $6,400, the benefit is at least nominally contingent upon "the signed recommendation of the director...." "Whether the word 'shall' is mandatory or precatory [in the nature of a request, wish or recommendation] depends upon its context." Smith v. Zoning Board of Appeals, 227 Conn. 71, 91-92 (1993); Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 273 (1992).

While subsection (a) of Section 10-295 uses the term "shall" with respect to the expenditure, subsection (b) indicates BESB "may expend" funds.2 (FN2) These words reflect an important legislative distinction. Where the legislature uses "shall" in one subsection of a statute and "may" in another, "'[t]he words 'shall' and 'may' must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings." Caulkins v. Petrillo, 200 Conn. 713, 717 (1986) (quoting Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428-29 (1967)). Here, under subsection (a), although the beneficiaries are "entitled" to the benefit, it is predicated on the director's recommendation. A review of this statute's numerous statutory predecessors reveals that in 1969 the phrase "signed recommendation of the director" was substituted for "affirmative vote or order of three members [of the board]." 1969 Conn. Pub. Acts No. 159.

Taking into account all these factors, including the cited common law principles of statutory construction, we are persuaded that the "shall be entitled" language of subsection (a), especially in the context of the repeated use of the "may" in the following subsections, indicates that the expenditure called for in subsection (a) is a mandatory one, up to a maximum of $6400, provided the student meets the other statutory criteria. In this context, the reference to the director's "recommendation" is tied to the other criteria. In other words, provided the director is satisfied that the student is indeed blind or visually impaired, up to $6400 of special education costs will be paid (or, in reality, reimbursed) by the state. If the student's special education program costs less, then the state will reimburse up to that amount.

By contrast, subsection (b) provides that BESB "may expend funds" up to $14,000 to send children who are both blind or visually impaired and deaf, or blind or visually impaired with "other severe physical handicaps" to specialized facilities. The use of the term "may" in this and the other statutory subsections connotes a discretionary function and expenditure, particularly where, as in subsection (b), the term is repeated throughout (e.g., the funds "may be spent" outside the state; BESB "may determine" if such children should be sent to out-of-state placements). Caulkins, 200 Conn. at 717. Obviously, if the expenditure itself is discretionary, the amount of any such expenditure is also within BESB's discretion.

Very truly yours,

Richard Blumenthal
Attorney General

Ralph E. Urban
Assistant Attorney General

1 <Footnote>It is notable that Conn. Gen. Stat. §10-295(c) provides that BESB may provide for the instruction of blind adults in their homes, expending such sums as the general assembly may appropriate, and Conn. Gen. Stat. §10-295(d) provides that BESB may expend up to $10,000 per fiscal year per blind and deaf adult for specialized facilities, with BESB determining the criteria for who is to be served.

2 <Footnote>As noted, subsections (b) and (c) also indicate BESB "may" provide certain benefits to other classes of people.

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