The Power To Terminate Includes The Power To EvaluatePosted: November 22, 2012
The Hartford Courant has an editorial today about an unfortunate dispute that has been brewing over at Connecticut’s Office of Governmental Accountability (“OGA”). The dispute is over who has the authority to evaluate the OGA executive administrator’s performance.
By way of background, the Malloy administration created the OGA as part of its effort to reduce the costs of state government by, among other things, consolidating state agencies. The OGA is the home to nine agencies, including the state’s three main “watchdog” agencies: the Freedom of Information Commission, the Elections Enforcement Commission and the Office of State Ethics. The OGA is intended to save money by authorizing a single executive administrator and his/her staff to provide so-called “back office” services, e.g., payroll, human resources, information technology, etc., to the various commissions, instead of having each commission with its own staff providing those critical services. In short, the OGA reduces costs by reducing redundancies.
The statute that created the OGA is a bit of an odd duck. (See Public Act 11-48, secs. 58 et seq.) On the one hand, it gives the Governor the authority to hire the administrator, but he must select his hire from a short list of persons recommended by the heads of each of the commissions within the OGA, who collectively constitute what is known as the Governmental Accountability Commission or “GAC”. If GAC does not provide a short list, the Governor is free to hire whomever he or she deems qualified for the position. On the other hand, the statute expressly authorizes the GAC to terminate the executive administrator. But the statute does not expressly say that the GAC has the power to evaluate the executive administrator’s job performance.
Since he was hired, the executive administrator has taken the position that the GAC does not have the statutory authority to evaluate him. His position–whatever its superficial appeal–cannot withstand legal scrutiny.
The proposition that an express grant of power or authority includes implied powers that are necessary or essential to exercise the express power is a well-settled rule of constitutional, statutory and contractual construction In non-legal jargon, it is generally referred to as the “greater power/lesser power” rule. It even has a latin name: Omne majus in se continet minus (the “grant of a greater power includes the grant of a lesser power”). Every court in the country, both federal and state, has probably invoked this rule of construction at one time or another. See, e.g., Posadas de Puerto Rico Assocs. v. Tourism Co.,478 U.S. 328, 345 (1986) (power to ban casino gaming entirely included lesser power to prohibit casino advertising); United States v. O ‘Neil,11 F. 3d 292, 296 (1st Cir. 1993) (“the principle that the grant of a greater power includes the grant of a lesser power is a bit of common sense that has been recognized in virtually every legal code from time memorial.”); Bottone v. Town of Westport, 209 Conn. 652, 671 (1989) (applying rule and citing Posadas de Puerto Rico Assocs.) Not surprisingly, the Attorney General’s office has recognized and applied this rule when issuing advisory opinions. E.g., Commission on Special Revenue, 1977 WL 36427 (Conn. A.G. Feb. 23, 1977) (“From this, the application of the standard principle that the power to do the greater (maintain books in a certain fashion and be subject to instant audit) carries with it the power to do the lesser (compel the furnishing of the information), necessarily follows.”).
Significantly, the legislative history of the statute creating the OGA states expressly and unequivocally that the GAC has the power to terminate and evaluate the performance of the executive administrator.
In sum, the dispute between the executive administrator of the OGA and the members of the GAC needs to be resolved–but it is not difficult to resolve. A legislative “fix” would be useful, but it is hardly necessary. Simply following the ancient maxim of omne majus in se continet minus should do the job.
UPDATE (11/26/12): A reader asked me to comment on the relationship between the “greater power/lesser power” rule discussed above and the “plain meaning” rule of statutory interpretation. Simply put, the plain meaning rule says that if a judge concludes that a statute is clear and unambiguous, and that its plain meaning does not lead to absurd or unworkable results, she is precluded as a matter of law from consulting extratextual evidence of the meaning of the statute, such as legislative history, no matter how persuasive that evidence may be. The plain meaning rule is codified in General Statutes section 1-2z, which overruled State v. Courchesne (2003), in which the Connecticut Supreme Court had abandoned the rule. Governor Malloy’s Chief Legal Counsel, Andrew McDonald (who knows more than a bit about section 1-2z, as he was a sponsor of the bill that became 1-2z when he was a state senator), indirectly referenced that statute when commenting on the OGA dispute in a recent article in the Hartford Courant. The question is whether a court can consider the legislative history of the statute that created the OGA–particularly the history concerning the GAC’s authority to evaluate the executive administrator.
Mr. McDonald is absolutely correct in referencing 1-2z. Any judge considering the OGA dispute must address the impact of the plain meaning rule on the “greater power/lesser power” rule. Does 1-2z effectively overrule or trump omne majus in se continet minus? A judge would also have to decide whether the OGA statute is clear and unambiguous, and whether it is “absurd or unworkable” if interpreted to deny the GAC the authority to evaluate the executive administrator? If the GAC doesn’t have that authority under the statute, who does?
Personally, I don’t think the legislature, in enacting 1-2z, intended to overrule any canon of statutory interpretation other than the one articulated in Courchesne. But I only think that because I am familiar with the legislative history of 1-2z, which is precisely what 1-2z says I cannot consult in ascertaining the meaning of 1-2z itself, assuming 1-2z is clear and unambiguous. My head hurts trying to resolve the conundrum. (But see Hummel v. Marten Transport (2007), in which the state Supreme Court explains that the purpose of 1-2z was to overrule Courchesne and stated that 1-2z itself had certain ambiguities). I also question whether interpreting the OGA statute as giving the GAC the power to terminate the executive administrator, but not to evaluate him, is “workable.” But arguments to the contrary are far from frivolous. A judge would have to decide–which, of course, is what judges are paid to do.
How would a court actually resolve these issues? It is tempting to make a prediction, but the last time I made on prediction on this blog I was, well, not quite right. So I will restrain myself this time. 🙂