Harris, 082720 CTAGO, AGO 2020-02

• Case Date: August 27, 2020
• Court: Connecticut

Mitchell R. Harris AGO 2020-02 No. 2020-02 Connecticut Attorney General Opinion Office of the Attorney General State of Connecticut August 27, 2020          Mitchell R. Harris          Chairman          Judicial Review Council          505 Hudson Street          P.O. Box 260099          Hartford, CT 06126-0099          Dear Chairman Harris:          You have requested a formal legal opinion concerning the scope of the Judicial Review Council's authority when considering a judge's disability retirement application pursuant to Conn. Gen. Stat. § 51-49. Section 51-49(a) vests the Judicial Review Council ("Council") with responsibility for determining whether a judge should be retired because he or she "has become so permanently incapacitated as to be unable to fulfill adequately the duties of his [or her] office." You recognized that the Judicial Branch "obviously plays the primary role in determining the availability and feasibility of accommodations." Nonetheless, you note that "neither the statute nor the regulation addresses the interplay between the Council's obligations and the authority with respect to reasonable accommodations and those of the Judicial Branch." Prompted by the recent receipt of a judge's disability retirement application, you have asked the following questions:

(1) Should the Council determine that a judge "has become so permanently incapacitated as to be unable to fulfill adequately the duties of his office" within the meaning of [Conn. Gen. Stat. § 51-49], must the Council also determine pursuant to Regulations of Connecticut State Agencies § 51-51k-10(j) "whether there is any reasonable accommodation which can be made for the incapacity so that said person can perform all the essential functions of his or her position?"

(2) If the answer to question one is in the affirmative, how should the Council determine whether a reasonable accommodation that will permit the judge to perform all of his or her essential functions is available and feasible?

(3) May the Council hear testimony or receive other evidence from the Judicial Branch about the availability and feasibility of potential accommodations?

(4) Is the Council authorized or legally required to participate in discussions with the judge and the Judicial Branch to determine whether reasonable accommodations are available that would permit the judge to perform all of his or her essential functions?

(5) May the Council, upon a finding that a reasonable accommodation that would permit the judge to continue his or her work is available, require that such accommodations be provided?

         We conclude that in determining whether a judge is permanently incapacitated and should be granted a disability retirement, the Council is required to consider whether there is a reasonable accommodation that could be made for the incapacity that would enable the judge to perform the essential functions of his or her position. To make this determination, the Council may conduct an investigation and hold a hearing at which it may solicit information from the judge, the Judicial Branch and other sources. The Council has no authority, however, to participate with the judge and the Judicial Branch in the interactive process required by the Americans with Disabilities Act ("ADA") and the Connecticut Fair-Employment Practices Act ("CFEPA") to agree upon reasonable accommodations. It also has no authority to require that specific reasonable accommodations be provided. Rather, it is up to the Judicial Branch to engage in the interactive process with the judge to determine what the judge needs in order to perform the essential functions of the job and to identify an appropriate reasonable accommodation.          Background          The General Assembly created the Council to investigate and act on allegations of judicial misconduct and...