Fasano, 100317 CTAGO, AGO 2017-8

• Case Date: October 03, 2017
• Court: Connecticut

The Honorable Leonard A. Fasano AGO 2017-8 No. 2017-08 Connecticut Attorney General Opinion Office of The Attorney General State of Connecticut October 3, 2017          The Honorable Leonard A. Fasano          Senate Republican President Pro Tempore          Legislative Office Building          300 Capitol Avenue, Suite 3400          Hartford, CT 06106          Dear Senator Fasano:          You have asked for an opinion on the following questions about the Governor's authority to direct the expenditure of funds by executive order in the absence of legislatively enacted appropriations: Does the Governor have the authority to (1) reduce the Excess Cost grants for state aid for special education provided under Conn. Gen. Stat. § 10-76g; (2) withhold funding under the Municipal Revenue Sharing program established by Conn. Gen. Stat. § 4-661; and (3) adjust the motor vehicle mill rate tax cap for calculating motor vehicle property tax grants under Conn. Gen. Stat. § 4-661? We have also received the attached letter from Governor Malloy dated October 3, 2017, responding to your concerns.          Background          As you indicate, the legislature has not yet enacted a budget for the fiscal years 2018-2019 biennium. On June 30, 2017, the Governor issued an executive order to ensure the continued operations of State government in the absence of an enacted budget, providing that:

all expenditures for the period of July 1, 2017 through the date of approval of an appropriations act for the fiscal year commencing July 1, 2017, shall be authorized only upon the Governor's approval of a request by the Office of Policy and Management for periodic spending authorizations in accordance with this executive order.

Executive Order No. 58, ¶ 4 (June 30, 2017).          On August 18, 2017, the Governor announced a Revised Executive Order Resource Allocation Plan (Revised Plan). Letter to Governor Dannel P. Malloy from OPM Secretary Benjamin Barnes dated Aug. 18, 2017. The Revised Plan was described as "a flexible document, subject to adjustment as the year progresses." Id. Among other things, it noted that:

we have made offsetting reductions to municipal aid to accommodate the private provider and other emerging expenditure needs. Note that we have shifted approximately $48.8 million from special education (Excess Cost-Student Based) to the Education Cost Sharing grant, which would keep special education funded at the FY 2017 level, and ECS was then reduced by a net total of about $51.2 to maintain aggregate balance in the revised EO Resource Allocation Plan.

Id. Tables that are part of the Revised Plan set out that for fiscal year 2018, under the Municipal Revenue Sharing Account established under Conn. Gen. Stat. § 4-661, municipalities would not receive any municipal revenue sharing grants or additional payments in lieu of taxes, and October 2017 motor vehicle property tax grants will be made to municipalities with mill rates greater than 37 mills. Id. at Tables 16-20.          The leading - and only - Connecticut Supreme Court case on the executive branch's authority to spend in the absence of enacted appropriations is State v. Staub, 61 Conn. 553 (1892). As we have opined on several occasions in the past, Staub offers some basic guiding principles. See A.G. Op. No. 2003-012, 2003 WL 21689608 (July 16, 2003); A.G. Op. No. 1991-033, 1991 WL 529795 (Nov. 4, 1991); A.G. Op. No. 1991-019, 1991 WL 529751 (June 7, 1991). In Staub, the Court faced the circumstance where the legislature had failed to enact appropriations. It held that, in the absence of an appropriation, "the existence of a law requiring an expenditure to be incurred is an appropriation of money for that purpose...." 61 Conn, at 563. The Court explained:

The omission by the general assembly to pass any special appropriations has been so long continued that it must be regarded as intentional. The general assembly is always presumed to know all the existing statutes, and the effect that its action or non-action will have upon any one of them; and it is always presumed to have intended that effect which its action or non-action produces. The neglect of the assembly of 1891 to observe the mandatory provisions of the special appropriation act may be construed in one of two ways: It may be held to be equivalent to an affirmative enactment suspending the prohibitory parts of the act, or it may be construed as a design by the general assembly to prevent the carrying on of the state government. The latter is something altogether too extravagant to be admitted. We think the former is the proper meaning, and that the omission by the general assembly to pass any appropriation bills, being intentional, operates, and was intended to operate, as a legislative construction that all the prohibitions contained in the act were suspended.

Id. at 566-67. Thus, the first principle that Staub establishes is that, where the legislature by statute has required the expenditure of monies, the executive, even in the absence of an enacted budget, has the authority to expend those monies.          The Court further observed:

Divers laws impose, by imperative command, on executive, administrative, and judicial officers, duties essential to the preservation of order, the administration of justice, and the protection of property. Many of these duties are not imposed by statute, but their performance is demanded by the constitution, and is, of necessity, involved in the existence of a government.

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