The Honorable Joe Aresimowicz
AGO 2017-6
No. 2017-06
Connecticut Attorney General Opinions
Office of The Attorney General State of Connecticut
July 27, 2017
The
Honorable Joe Aresimowicz
Speaker
of the House of Representatives
State
House of Representatives
State
Capitol
Hartford,
CT 06106
The
Honorable Matthew Ritter
House
Majority Leader
State
House of Representatives
State
Capitol
Hartford,
CT 06106
Dear
Speaker Aresimowicz and Majority Leader Ritter:
You
have requested an opinion about whether the legal principles
and cautions set forth in Attorney General Opinion No. 89-11,
1989 WL 505894 (May 9, 1989) ("Opinion 89-11")
concerning the constitutionality of legislative enactments
altering the provisions of collective bargaining agreements
between the State and its employees remain in force today.
Although subsequent cases have further developed the law, we
conclude that the principles and cautions expressed in
Opinion 89-11 continue to apply.[1]
In
Opinion 89-11, this Office addressed the question of whether
proposed changes to cost of living adjustment provisions in
collective bargaining agreements between the State and its
employees would violate state or federal law. Although no
state or federal statute prohibited such changes, we
concluded that such legislation might run afoul of the
Contract Clause of the federal constitution in some
circumstances.[2]
In
reaching that conclusion, we noted that "the Contract
Clause limits the power of the states to modify their own
contracts as well as to regulate those between private
parties," and that "a greater degree of judicial
scrutiny will be applied to the impairment of the state's
own contracts." Opinion 89-11 at 1. We identified
several factors that courts consider to determine whether
such legislation violates the Contract Clause, including: (1)
the severity of the impairment, id. at 2-3; (2)
whether the State has an important and legitimate public
purpose for the impairment, id. at 3; and (3)
whether the impairment at issue is reasonable and necessary
to achieve that public purpose. Id. at 4-6.
Applying
those principles, we opined that a decrease in the cost of
living adjustment provisions in the State's collective
bargaining agreements would impair those agreements, and that
such an impairment likely would be deemed substantial.
Id. at 1-3. We further opined that the stated
purpose of the legislation to alleviate the State's
anticipated budget deficit likely would constitute an
important public purpose. Id. at 3.
Turning
to the third prong of the analysis—whether the
impairment is reasonable and necessary—we first noted
"that the application of the tests of necessity and
reasonableness requires a much greater degree of judicial
scrutiny in cases involving legislation which purports to
abrogate a state's own financial obligation,
than in cases involving an impairment by the state of
contracts between private parties." Id. at 4
(emphasis in original). We stated that the question of
'"reasonableness' requires a determination of
whether relevant circumstances have changed from the time the
contract was made to the present, and whether this change was
foreseeable at the time the contract was entered into."
Id. We further stated that the "necessity"
component requires analysis of: (1) whether a less drastic
modification of contractual obligations would have been
sufficient to accomplish the state's purposes; and (2)
whether the state could have achieved its goals through
alternative means, such as tax increases or reducing costs in
other state programs. Id. We noted that courts that
have applied these standards in the past have struck down
legislation that is intended to remedy a state's fiscal
crisis by denying contractually guaranteed salary increases.
Id. at 4-6.
Based
on the foregoing, we advised that "the legislature will
need substantial justification . . . for any denial of salary
increments promised in collective bargaining
agreements." Id. at 6. More specifically, we
advised that, "prior to the adoption of any such...
