Attorney General's Opinion

Attorney General, Richard Blumenthal

October 20, 2009

The Honorable Donald E. Williams, Jr., Senate President Pro Tempore

The Honorable Martin M. Looney, Senate Majority Leader

The Honorable Christopher G. Donovan, Speaker of the House
The Honorable Denise Merrill, House Majority Leader
General Assembly
State Capitol
Hartford, CT  06106-1591

Dear Senator Williams, Senator Looney, Representative Donovan and Representative Merrill:

This letter responds to your request for a formal legal opinion as to whether the state-owned High Meadows health care facility in Hamden, Connecticut, must remain fully operational over the biennium based on the State’s recently adopted biennial budget.

We understand that High Meadows serves mentally ill individuals and their families and is administered by the Department of Children and Families. Governor Rell’s proposed budget for the 2009-2011 biennium, submitted to the General Assembly in February, 2009, eliminated all funding for High Meadows. According to your letter, the General Assembly rejected the Governor’s proposal and included full funding for the facility in the budget, House Bill 6802, which became law without the Governor’s signature. You state that although High Meadows was fully funded, Governor Rell has publicly stated her intention to close the facility and has filed a termination of a certificate of need application with the Office of Health Care Access. Under the circumstances, you ask whether the Governor has the authority to close High Meadows.

We conclude that the General Assembly intended to fully fund High Meadows in the recently adopted biennial budget. We further conclude that the Governor lacks the constitutional or statutory authority to close High Meadows, although she may reduce allotments to DCF during the biennium pursuant to Conn. Gen. Stat. § 4-85 if the requirements of that statute are met.

We reach this conclusion based on the language and legislative history of the budget act, Public Act 09-03 (June Sp. Sess.)(House Bill 6802), “An Act Concerning Expenditures and Revenue for the Biennium Ending June 30, 2011,” and one of its implementing acts, Public Act 09-07 (Sept. Sp. Sess.), “An Act Implementing the Provisions of the Budget Concerning General Government and Making Changes to Various Programs.” In construing these statutes, like all statutes, the “fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” American Promotional Events, Inc. v. Blumenthal, 285 Conn. 192, 202 (2008). In searching for the legislative intent, a court looks “first to the text of the statute itself and its relationship to other statutes.” Id., citing  Conn. Gen. Stat. § 1-2z. If the text of the statute is not plain and unambiguous, it is appropriate to look to the statute’s “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.” Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 679 (2004).

Public Act 09-03 appropriates funds to the Department of Children and Families for fiscal years 2009-2010 and 2010-2011. The yearly totals are broken down into broad categories of spending, including “Board and Care for Children – Residential.”¹ Although this latter category would encompass High Meadows, it does not mention High Meadows or any other specific facility. The implementer bill, Public Act 09-07, likewise does not mention High Meadows. In the absence of clear and unambiguous language as to whether the appropriations were intended to fund High Meadows, we look to the Acts’ legislative histories for evidence of legislative intent.

The Senate floor debate on House Bill 6802, which because Public Act 09-03, indicates that there was disagreement over whether to close certain state facilities and that the final decision was that the facilities would not be closed. Senator McKinney chastised his colleagues for this result, stating “we’re unwilling to make big decisions like close down inefficient hospitals, close down psychiatric facilities that cost us money that could be done for half in the private sector.” ___ Conn. S. Proc., pt. ___, 2009 June Sp. Sess. _____ (August 31, 2009)(remarks of Sen. McKinney). Senator McKinney went on to focus specifically on the General Assembly’s refusal to close Riverview Hospital. Id.

Although Senator McKinney did not mention High Meadows explicitly, the legislative intent that High Meadows not be closed is evident from a report prepared by the Office of Fiscal Analysis (“OFA”) comparing the Appropriations Committee’s budget to the Governor’s proposed budget. The report noted, under a discussion topic with the heading “Adjust Status of High Meadows,” that under the Governor’s proposal:

A net reduction in funding, in the amount of $ 1,406,015 in FY 10, is provided to reflect the phased-in closure of High Meadows by February 2010. This reflects:

• Savings of $ 6,599,252 from elimination of 106 positions and associated workers’ compensation claims and other expenses costs; and
• Offsetting costs of $ 5,193,237 to support alternative care for affected children.

The annualized net savings associated with this facility closure is $ 6,027,010 in FY 11.

2009 Appropriations Committee JF Report, Office of Fiscal Analysis, 4/2/09, p. 267 (available at www.cga.ct.gov/ofa/Documents/OFABudget/2009/Committee/ Index.htm). The report then noted the Appropriation Committee’s rejection of the Governor’s proposal, stating:

(Committee) A reduction in funding is not provided. It is the intent of the committee that High Meadows remain open and that the department seek certification of both High Meadows and Connecticut Children’s Place under the Medicaid program so as to maximize federal funding to the state. Four positions are provided to allow the agency to seek Medicaid certification.

Id. (emphasis added).

A similar report comparing House Bill 6802, as amended, to the Governor’s budget indicates there were added funds to “adjust status of High Meadows.” HB 6802 (as amended) vs. Governor 3, Office of Fiscal Analysis, 9/3/09, p. 75. Those additional funds were the same as those described in the 2009 Appropriations Committee JF Report.

During the House floor debate on the implementer bill, Public Act 09-07 (Sept. Sp. Sess.), legislators emphasized their intent that High Meadows remain open. In particular, Representative Lesser asked, “does this legislation close any of the following facilities: The High Meadows Facility, Cedarcrest, Riverview Hospital or the Connecticut Valley Hospital Detox Facility.” __ Conn. H.R. Proc., pt. __, 2009 Sept. Sp. Sess. ___ (Oct. 2, 2009)(remarks of Rep. Lesser). Representative Geragosian replied:

[T]he answer is no. As you know, our budget vote a month ago rejected the Governor’s proposals to close High Meadows, Cedarcrest, and several other health care facilities, and the budget provides funding for those facilities. We specifically included funds to avoid the Governor’s proposed cuts. There’s nothing in this legislation before this - - - in this legislation or in the budget that has become law that would authorize the Governor to close those facilities.

__ Conn. H.R. Proc., pt. __, 2009 Sept. Sp. Sess. ___ (Oct. 2, 2009)(remarks of Rep. Geragosian)(emphasis added).  Based on the foregoing legislative history, we conclude that the legislative intent was to fully fund the operation of High Meadows so that it could remain open.

Given this legislative intent, you ask whether the Governor has the authority to close High Meadows or whether the facility must remain open throughout the biennium.

It is well established that the Governor has only that power vested in her by the state constitution or by statute. Bridgeport v. Agostinelli, 163 Conn. 537, 546-547 (1972); 81A C.J.S., States § 130. The state constitution does not authorize the Governor to reduce appropriations or allotments.² State statutes, however, do.  Pursuant to Conn. Gen. Stat. § 4-85, the Governor is authorized to reduce allotments if the Comptroller projects a General Fund deficit greater that one percent of total General Fund appropriations or the Governor determines that estimated budget resources during the fiscal year will be insufficient to finance all appropriations in full. Such reductions are limited to three percent of the total appropriation from any fund, or five percent of any appropriation, except in time of war, invasion or emergency caused by natural disaster. Conn. Gen. Stat. § 4-85(b). Any reductions in excess of those amounts that are necessary to prevent a deficit must be approved by the Finance Advisory Committee. Conn. Gen. Stat. § 4-85(c). If the reduction exceeds five percent of total appropriations, it must be approved by the General Assembly. Id. Applying this statute to the present situation, we conclude that if the conditions of § 4-85 are met, the Governor could reduce DCF’s appropriation for “Board and Care for Children – Residential,” which includes funding for High Meadows, by up to five percent without seeking legislative approval.

In addition to Conn. Gen. Stat. § 4-85, Public Act 09-03, § 48, further authorizes the Governor to reduce appropriations. Section 48 states that:

Notwithstanding the provisions of subsections (a) to (d), inclusive, of section 4-85 of the general statutes and subsection (f) of section 4-89 of the general statutes, the Governor may modify or reduce requisitions for allotments during the fiscal years ending June 30, 2010, and June 30, 2011, in order to achieve personal services reductions, including any collective bargaining and other related savings, required under this act, any other public or special act or any collectively bargained agreement.

Public Act 09-03, § 48  (June Special Session). On its face, this language appears to permit the Governor to reduce allotments in excess of the limits set forth in § 4-85 to achieve savings mandated by Public Act 09-03, other acts, or by any collective bargaining agreement. In the absence of any statute or collective bargaining agreement provision that mandates personal services reductions at DCF facilities, this section would not permit the Governor to reduce the DCF’s appropriations for “Board and Care for Children – Residential,” including High Meadows, beyond that permitted by § 4-85.

The legislative history of Public Act 09-07 confirms this interpretation. During floor debate in which Representative Geragosian explained that the budget vote had “rejected the Governor’s proposals to close High Meadows, Cedarcrest, and several other health care facilities,” Representative Lesser asked “what about section 48 of the budget? Would this give the Governor any authority to close those facilities?” __ Conn. H. R. Proc., pt. ___, 2009 Sept. Sp. Sess. ____, (October 2, 2009)(remarks of Rep. Lesser). Representative Geragosian replied:

[I]n my opinion, no. Section 48, would not give the Governor authority. Section 48 was included in the budget to allow the Governor to reduce any existing allotment in conformance with cuts otherwise included in the budget, such as the SEBAC agreement, the savings management, for example. It does not affect the Governor’s authority regarding the facilities you mention.

__ Conn. H. R. Proc., pt. ___, 2009 Sept. Sp. Sess. ____, (October 2, 2009)(remarks of Rep. Geragosian).

Accordingly, we conclude that the legislative intent of Public Act 09-03 was that High Meadows be fully funded for the biennium encompassing fiscal years 2009-2010 and 2010-2011. The Governor has no constitutional or statutory authority to close the facility during that time, but could reduce allotments to DCF during that period in conformity with Conn. Gen. Stat. § 4-85 if the requirements of that provision are met.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

¹ Public Act 09-03 (June Special Session) appropriates a total of  $869,271,516 for DCF for fiscal year 2009-2010, and $792,885,130 for fiscal year 2010-2011. Of these amounts, $189,341,408 is appropriated for “Board and Care for Children – Residential” for fiscal year 2009-2010 and $190,368,901 is appropriated for fiscal year 2010-2011.

² An “allotment” is “a portion of an appropriation or special fund set aside to cover expenditures and encumbrances for a certain period or purpose.” Conn. Gen. Stat. § 4-69(3).

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