Major General Thaddeus J. Martin, Adjutant General
AGO 2017-9
No. 2017-09
Connecticut Attorney General Opinion
Office of the Attorney General State of Connecticut
December 11, 2017
Major
General Thaddeus J. Martin, Adjutant General
Connecticut
National Guard
360
Broad Street
Hartford,
CT 06105-3795
Dear
Major General Martin:
You
have requested a formal opinion concerning two matters
identified in the State of Connecticut Auditors'
Report, Military Department, for the Fiscal Years Ended June
30, 2012 and 2013 ("Auditors' Report").
First, you have asked whether the requirements under
Connecticut General Statutes § 4-37e et seq.
pertaining to foundations established for the principal
purpose of supporting or improving state agencies or for
coordinated emergency recovery purposes apply to the
Connecticut National Guard Foundation, Inc. (CNGFI). Second,
you have asked whether the authority of the Governor of the
State of Connecticut pursuant to the provisions of
Connecticut General Statutes §§ 27-9 and 27-10, as
delegated to and administered by the Connecticut Military
Department (CTMD), is restricted to ordering members of the
Connecticut State Guard to active service under the
"State Active Duty" (SAD) program only for
"emergency situations" as suggested by the
Auditors' Report.
We
conclude that the CNGFI is not a "foundation" as
that term is defined in Conn. Gen. Stat. § 4-37e et
seq., and is, therefore, not subject to the requirements
pertaining to foundations established for the principal
purpose of supporting or improving state agencies or for
coordinated emergency recovery purposes. We further conclude
that the authority of the Governor of the State of
Connecticut, as delegated to and administered by the CFMD
pursuant to the provisions of Conn. Gen. Stat. §§
27-9 and 27-10, is not restricted to ordering members of the
Connecticut State Guard to service under the SAD program only
for "emergency situations" as suggested by the
Auditors' Report.
I.
Connecticut National Guard Foundation, Inc.
You
have informed us that the CNGFI is a private, nonprofit
501(c)(3) corporation and has an independent governing body
that is separate from the CTMD. As stated in the CNGFI's
charter, the Foundation's primary purpose is to provide
need based and educational assistance to members of the
Connecticut National Guard, the Connecticut Organized
Militia, their families, and Reserve Component Family
Readiness Groups (e.g. Army Reserve, Air Force
Reserve, Navy Reserve, and the Marine Corps Reserve). The
Foundation raises funds from the general public,
corporations, and corporate and governmental employees for
temporary financial assistance, scholarships, special
projects, and endowment for those needs. Benefits, in the
form of clothing, food, medical/surgical aid, and general
care and relief, are provided to eligible candidates via an
application process. The CTMD provides office space and
utilities to the Foundation within the State Armory located
at 360 Broad Street in Hartford, Connecticut at no cost, but
offers no further support to the CNGFI.
Conn.
Gen. Stat. § 4-37e(2) defines a "foundation"
as "an organization, fund or any other legal entity
which is (A) exempt from taxation pursuant to Section
501(c)(3) of the Internal Revenue Code of 1986, or any
subsequent corresponding internal revenue code of the United
States, as from time to time amended, and (B) established for
the principal purpose of receiving or using private funds for
charitable, scientific, cultural, educational or related
purposes that support or improve a state agency or for
coordinated emergency recovery purposes." Conn. Gen.
Stat. §§ 4-37f through 4-37k set forth specific
requirements for both foundations and for the state agencies
that they were established to support. These requirements
include, among others, the establishment of governing boards
for foundations, the annual filing of an updated list of
board members, written agreements regarding use of the
agency's facilities and resources, reimbursement to state
agencies for expenses incurred as a result of foundation
operations if the supported agencies would not have otherwise
incurred such expenses, periodic audits of foundation
accounts, review of audits by the Auditors of Public
Accounts, procedures for foundation solicitations, and
prohibitions on state officers or employees receiving
compensation or anything of value from a foundation without
the express approval of a competent authority.
Because
you have already informed us that the CNGFI is a tax-exempt
organization pursuant to Section 501(c)(3) of the Internal
Revenue Code, the only remaining issue for our consideration
is whether, pursuant to Conn. Gen. Stat. § 4-37e(2)(B),
the CNGFI was "established for the principal purpose of
receiving or using private funds for charitable, scientific,
cultural, educational or related purposes that support or
improve [the Connecticut Military Department]." We find
that the CNGFI was not so established.
This
office previously issued an opinion to the state auditors
regarding a similarly situated organization, the Central
Connecticut State University (CCSU) Alumni Association, Inc.
See Conn. Op. Atty Gen. No. 1992-032, 1992 WL 532121
(Nov. 23, 1992). That opinion provides a useful analysis for
determining whether a specific tax-exempt corporation or
organization, such as the CNGFI, is one established for the
principal purpose described above. This office reasoned as
follows therein:
Distilled to its simplest terms, a "foundation" is
a § 501(c)(3) organization whose principal purpose is to
receive or use private funds to benefit a state agency. The
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