Attorney General's Opinion

Attorney General, Richard Blumenthal

April 30, 2008

Honorable Brenda L. Sisco

Department of Administrative Services

165 Capitol Avenue

Hartford, CT  06106

Dear Commissioner Sisco:

You have asked for an opinion on whether the Set-Aside program for small contractors, minority business enterprises and other disadvantaged businesses (collectively, “SBE/MBEs”) applies to Regional Councils of Governments, Regional Planning Agencies and Transit Districts.  The Department of Administrative Services ("DAS") administers the Set-Aside Program for SBE/MBEs pursuant to Conn. Gen. Stat. § 4a-60g, which requires State agency heads and the heads of political subdivisions other than municipalities to set aside in each fiscal year a percentage of the total value of the agency’s contracts for SBE/MBEs. Although Conn. Gen. Stat. § 4a-60g(a)(2) defines the term "state agency," the term "political subdivision of the state" is not defined in the statute. 

Based on the following analysis, it is my opinion that Regional Councils of Governments, Regional Planning Agencies and Transit Districts are political subdivisions of the state for purposes of the Set-Aside program that DAS administers, and accordingly must comply with its terms.

I. STATUTORY FRAMEWORK

A. Connecticut General Statute § 4a-60g.

DAS has the responsibility of administering the Set-Aside Program.  See Conn. Gen. Stat. § 4a- 51 and Conn. Gen. Stat. §4a-60g(d). Under the Set-Aside Program, once DAS certifies a vendor as an SBE/MBE participant, that vendor becomes eligible to bid on contracts that the state sets aside exclusively for SBE/MBEs, as well as on all other state contracts that have a set-aside component. The Set-Aside Program requires the head of each state agency and each political subdivision of the state to set aside twenty-five percent of state contracts for certified SBE/MBEs.  The statute provides as follows:

[T]he head of each state agency and each political subdivision of the state other than a municipality shall set aside in each fiscal year, for award to small contractors, on the basis of competitive bidding procedures, contracts or portions of contracts for the construction, reconstruction or rehabilitation of public buildings, the construction and maintenance of highways and the purchase of goods and services.  (Emphasis added.)

Conn. Gen. Stat. §4a-60g(b).  The statute, however, does not define what constitutes a political subdivision of the state.

B. “Political Subdivisions of the State.”

In identifying the public entities that must subscribe to the Set-Aside Program, Conn. Gen. Stat. § 4a-60g(a)(2) defines the term “state agency” as “each state board, commission, department, office, institution, council or other agency with the power to contract for goods or services itself or through its head.”  It does not, however, define "political subdivisions of the state."  Since Conn. Gen. Stat. § 4a-60g is silent as to the meaning of “political subdivision of the state,” it is neither plain nor unambiguous.  Accordingly, the rules of statutory construction require us to look beyond the text of the statute to determine whether the meaning of that phrase includes Regional Councils of Governments, Regional Planning Agencies and Transit Districts.   See Conn. Gen. Stat. § 1-2z.  See also Friezo v. Friezo, 281 Conn. 166, 181-82 (2007), which articulates the rule as follows:

When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.  In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.  In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes . . . .   When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history . . . , 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.  (Citation omitted; ellipses omitted; emphasis added.)

The legislative history of Conn. Gen. Stat. § 4a-60g is not definitive regarding the inclusion of Regional Councils of Governments, Regional Planning Agencies and Transit Districts within the ambit of the statute. On the floor of the house, the only comment on the current terminology of this bill stated simply that   “this bill would extend the set-aside requirement, to political subdivisions of the state other than a municipality.”  H.R. 5925, Vol. 27, Pt. 14, P. 4949-50 (Conn. 1984).  Similarly, the Senate passed the bill without expressly defining or discussing the phrase “political subdivisions of the state.”  S. 5925, Vol. 27, Pt. 8, P. 2954-55 (Conn. 1965).  In addition, the records from the State Committee Hearings are silent on this issue.  Connecticut Set Aside Program Provisions: Hr’g, on H.B. 5925 Before the J. Stnd. Comm. On Planning & Dev., Pt.2, P. 413-14 (1984) (statement of Frank Rondo, Chief Admin. Officer for the Dep’t of Admin. Serv.). 

Chapter 58 of the general statutes confers on DAS the broad authority to contract for itself and for all Executive Branch agencies for goods and services.  This chapter also contains specific statutes which bar discrimination when carrying out these duties on the basis of race, color, religious creed, age, marital status, national origin, ancestry, sex, mental retardation, physical disability and sexual orientation.  See Conn. Gen. Stat. §§ 4a-60 and 4a-60a.  Although these non-discrimination statutes also use the phrase “political subdivision of the state,” they similarly do not define the phrase.  The Set-Aside provision is included within this chapter and, like the non-discrimination statutes, does not define the phrase “political subdivision of the state.”

However, other statutes and the common law offer guidance on construing the phrase “political subdivision of the state.” In defining local government as a political subdivision of many parts, Conn. Gen. Stat. § 2-32b(a)(1) makes clear that the phrase is to be broadly construed.  The statute provides:

Local government means any political subdivision of the state having power to make appropriations or to levy taxes, including any town, city or borough, consolidated town and city or consolidated town and borough, any village, any school, sewer, fire, water or lighting district, metropolitan district, any municipal district, any beach or improvement association, and any other district or association created by any special act or pursuant to chapter 105, or any other municipal corporation having the power to issue bonds[.]

The Connecticut Supreme Court has interpreted the phrase “political subdivision of the state” broadly. In State ex rel Maisano v. Mitchell, 155 Conn. 256, 263-64 (1967), interpreting Conn. Gen. Stat. § 9-167a, the Court stated: 

The term 'political subdivision' is broad and comprehensive and denotes any division of the State made by the proper authorities thereof, acting within their constitutional powers, for the purpose of carrying out a portion of those functions of the State which by long usage and the inherent necessities of government have always been regarded as public.

Id. (citations omitted).  In its determination that a taxing district was within the definition of “political subdivision” the Court considered several factors as determinative:   First, the entity was formed by proper authorities; second, it performs an inherently public function; third, it exists within a prescribed area; and fourth, it operates with autonomous self-governance. Id. (citing Commissioner of Internal Revenue v. Shamberg's Estate, 144 F.2d 998, 1004 (2d Cir., 1944)).  In another opinion, the Court similarly found that an entity would be considered a political subdivision of the state if it “exists for the purpose of discharging some function of local government . . . has a prescribed area . . . and . . . possesses authority for subordinate self-government through officers selected by it.”  Dugas v. Beauregard, 155 Conn. 573, 578 (1967) (interpreting  Conn. Gen. Stat. § 7-195).

Applying the same criteria which the Court used in State ex rel Maisano v. Mitchell, supra, this office has also construed the statutory phrase “political subdivision of the state” broadly and concluded that the South Central Regional Council of Governments is a political subdivision of the state.  See 013 Conn. Op. Atty. Gen. 1 (2000). “The authority to establish such regional councils of government derives from a duly enacted statute and the councils themselves are in fact established by the actions of the component municipal bodies. . . . [Regional Councils of Governments perform] “'functions of the state which by long usage and the inherent necessities of government have always been regarded as public.'”  Id., citing Maisano at 263-64.

In contrast, we concluded in another opinion that Tourism Districts were not political subdivisions of the state because “they lack an essential attribute of a political subdivision in that [they] . . . have no authority for subordinate self-government … [They also] do not administer any state program [or] . . . perform an exclusively governmental function.”  008 Conn. Op. Atty. Gen. 1 (1996).  While it was significant that the statute creating tourism districts did not specifically designate them as political subdivisions, that factor alone was not dispositive. 

II. REGIONAL COUNCILS OF GOVERNMENTS, Regional Planning Agencies and Transit Districts

Applying these criteria to the entities included in your question, we conclude that they constitute political subdivisions of the state for purposes of the Set-Aside program. 

A. Regional Councils of Governments

As discussed above, this office has already opined that regional councils of government are political subdivisions of the state because they satisfy the Maisano standards.  013 Conn. Op. Atty. Gen. (2000). Regional Councils of Governments are statutorily created.  Conn. Gen. Stat. § 4-124j provides that local communities are authorized to organize a membership and create a “Regional Council of Governments.” ¹  Each municipal member of the council is entitled to one representative who casts a single vote.  Conn. Gen. Stat. § 4-124k.  Councils must adopt bylaws and annually elect a chairman, a secretary, a treasurer and other officials from among the representatives. Conn. Gen. Stat. § 4-124n.

The primary duty of a Regional Council of Governments is to create a plan of development for its members (the “Plan”). Conn. Gen. Stat. § 4-124o.  This statute requires that the Plan conform to the requirements of Conn. Gen. Stat. § 8-35a, such as recommendations for the general use of the geographical area of the members including land use, housing, principal highways and freeways, bridges, airports, parks, playgrounds, recreational areas, schools, public institutions and public utilities. These recommendations incorporate studies of physical, social, economic and governmental conditions and trends, whose intent is to promote the general welfare and prosperity of the people.  Id.

Each Regional Council of Governments may receive funds from private, state and federal government sources.  Conn. Gen. Stat. § 4-124p.  In addition, any town, city or borough participating in a council must annually appropriate funds for its operations.  Id.  Consequently, a council may hire employees and enter into contracts with public or private entities to carry out its purposes.  Id.

B. Regional Planning Agencies

Like Regional Councils of Governments, the General Assembly has also statutorily authorized the creation of Regional Planning Agencies. Conn. Gen. Stat. § 8-31a.² Two or more municipalities may agree to form a Regional Planning Agency within regions of the state that the Office of Policy and Management (“OPM”) designates as “planning regions.”  Conn. Gen. Stat. § 8-31a. Each municipality may have two representatives as members of the Regional Planning Agency in addition to one representative for every fifty thousand persons residing in their municipal area.  Id. Regional Planning Agencies must adopt bylaws and annually elect a chairman and a treasurer from among the representatives.  Conn. Gen. Stat. § 8-33a.

Like Regional Councils of Governments, the primary duty of Regional Planning Agencies is to create a Plan applicable to its members and, after following the statutory procedure for adoption, deliver it to each municipality and OPM.  Conn. Gen. Stat. § 8-35a.  This Plan includes recommendations for the general use of the relevant geographical area including land use, housing, principal highways and freeways, bridges, airports, parks, playgrounds, recreational areas, schools, public institutions, and public utilities.  Id.  The recommendations incorporate studies of physical, social, economic and governmental conditions and trends, and are designed to promote the general welfare and prosperity of the people affected within the geographical area.  Id. 

Regional Planning Agencies may receive funds from private as well as state and federal government sources.  Conn. Gen. Stat. § 8-34a.  In addition, any town, city or borough participating in a regional council of governments must annually appropriate funds for its operations. Id.  Regional Planning Agencies may use the funds to hire employees and enter into contracts with public or private entities to carry out its purposes.  Id.

C. Transit Districts

As with Regional Councils of Governments and Regional Planning Agencies, the General Assembly has statutorily authorized the creation of Transit Districts.  Conn. Gen. Stat. § 7-273b.³  Any municipality or group of municipalities may form a Transit District in accordance with enabling legislation. Id. The governing body of Transit Districts is a board of directors whose members come from among the participating municipalities in accordance with their respective populations. Conn. Gen. Stat. § 7-273c.  The directors, who may adopt bylaws, elect officers from among their number.  Id.

Transit Districts generally develop, maintain and improve systems of mass transportation for people and goods within the state, and particularly within metropolitan areas.  Conn. Gen. Stat. § 7-273b.  To this end, they may assume the powers of the Connecticut Department of Transportation to regulate and supervise the operation of any transit system within their geographical boundaries. Conn. Gen. Stat. § 7-273d.  The Transit Districts have the authority to establish passenger fares, establish service standards and to discontinue uneconomic routes.  Id. 

In addition, Transit Districts may hold and transfer real property by purchase or eminent domain, see Conn. Gen. Stat. § 7-273e, and may enter into contracts to carry out their duties.  Conn. Gen. Stat. § 7-273k.  Transit Districts have the authority to issue bonds in order to fund these appropriations and procurements.  Conn. Gen. Stat. § 7-273g. 

III. CONCLUSION

Because Regional Councils of Governments, Regional Planning Agencies and Transit Districts meet the criteria articulated by the Connecticut Supreme Court in State ex rel Maisano v. Mitchell  and by this office in earlier opinions, supra, we conclude that they are political subdivisions of the State within the meaning of Conn. Gen. Stat. § 4a-60g. Specifically, Regional Councils of Governments, Regional Planning Agencies and Transit Districts are government entities in that they are statutorily created by  local governments through appropriate municipal actions. See Conn. Gen. Stat. § 4-124j; Conn. Gen. Stat. § 8-31a; and Conn. Gen. Stat. § 7-273b.  In addition, they are autonomously self-governed in that they have statutory authorization to create bylaws and select their own officers. See Conn. Gen. Stat. § 4-124n; Conn. Gen. Stat. § 8-33a; and Conn. Gen. Stat. § 7-237c. They also maintain the ability to enter into contracts to perform their functions. See Conn. Gen. Stat. § 4-124p; Conn. Gen. Stat. § 8-34a; and Conn. Gen. Stat. § 7-273b; Conn. Gen. Stat. § 7-273d; Conn. Gen. Stat. § 7-273g.  Further, they are geographically defined by statute. See Conn. Gen. Stat. § 4-124l; Conn. Gen. Stat. § 8-32a; and Conn. Gen. Stat. § 7-273b. Finally, their functions and duties, namely, to create local plans of development for the “general welfare and prosperity of its people,” are inherently public. Conn. Gen. Stat. § 4-124d; Conn. Gen. Stat. § 8-35a; and Conn. Gen. Stat. § 7-273b.

Accordingly, because the composition of Regional Councils of Governments, Regional Planning Agencies and Transit Districts is similar to those entities encompassed within statutory definitions of the phrase “political subdivisions of the state,” and because they meet the criteria established by the Connecticut Supreme Court for defining  “political subdivisions of the state,” we conclude that they are political subdivisions of the state pursuant to Conn. Gen. Stat. § 4a-60g.

 

Therefore, it is the opinion of this office that the Set-Aside requirements set forth in Conn. Gen. Stat. §4a-60g are applicable to these entities.

Very truly yours,

RICHARD BLUMENTHAL

Jose Salinas
Assistant Attorney General

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