AGO 1997-005.

• Case Date: March 20, 1997
• Court: Connecticut

Connecticut Attorney General Opinions 1997. AGO 1997-005. March 20, 1997Opinion No. 1997-005Messrs. Kevin P. Johnston and Robert G. JaekleAuditors of Public AccountsState Capitol210 Capitol AvenueHartford, CT 06106-1559 Dear Messrs. Johnston & Jaekle: This is in response to your request for an opinion regarding the settlement of an employment dispute with Marc Schillinger, a former state employee. Specifically, you inquire "whether the Governor, upon the recommendation of the Attorney General, has the authority under Section 3-7(c) [of the General Statutes] to compromise a claim in a manner which is not in accordance with Section 5-162 and 5-155a of the General Statutes." As you know, neither the Governor nor any other State official can act in a way that directly contravenes a statute. Having reviewed and discussed the Schillinger matter, this compromise was in accordance with pertinent statutes. To summarize the factual background, in September of 1995, the Office of the State Comptroller (OSC) completed a major reorganization of its upper level management. As a result, some job classifications were rendered obsolete, and a new one was created. One of the employees affected by this reorganization was Marc Schillinger. Mr. Schillinger's job classification of Assistant Chief Administrative Officer was scheduled to be eliminated. As Assistant Chief Administrative Officer, Mr. Schillinger was paid $84,610 in MP (Managerial Pay Plan) 72 at the time of the reorganization.1 The OSC offered him a new position as Associate Fiscal Administrative Officer in which he would have been paid $53,529 in MP59, an annual difference of approximately $31,000. After raising a number of possible legal claims against the Comptroller concerning this change in position, including claims of age discrimination, Mr. Schillinger entered into an Agreement and Release (hereinafter Agreement) with the OSC on September 25, 1995 under which, inter alia, he would retire and receive a lump sum payment of $24,411.84. For the purposes of retirement, this sum was divided over the last three years of Mr. Schillinger's employment with the State. As a result of our review, this office determined that the Agreement should be recommended to the Governor for approval under the provisions of Section 3-7(c) of the General Statutes, which states,

[u]pon the recommendation of the attorney general, the governor may authorize the compromise of any disputed claim by or against the state or any department or agency thereof, and shall certify to the proper officer or department or agency of the state the amount to be received or paid under such compromise.

Conn. Gen. Stat. § 3-7(c). This office recommended compromise of the claim in accordance with the terms of the Agreement. That Recommendation sets forth in detail the legal justification for entering into the compromise. In essence, we concluded "that Mr. Schillinger has some colorable legal claims upon which he might prevail if his claims were brought to trial," and that if he prevailed "a judgment ... could easily exceed the ... compromise amount." The Governor approved the compromise, as did the Retirement Commission. Specifically at issue in your request for opinion is ¶ 5 of the Agreement which provides:

For the purposes of ascertaining the average of Marc Schillinger's three highest years earnings under the plan provisions of the State Employees Retirement System, the said $24,411.84 will be apportioned in thirds to each separate twelve month period comprising such average.

Your request presupposes that this provision violated Sections 5-155a and 5-162 of the General Statutes. We conclude that this provision did not violate those statutes. Dealing first with Section 5-155a, your request states that "since the Retirement Act is incorporated into a collective bargaining agreement, this may be a violation of Section 5-155a of the General...