Anticipating The AG’s Opinion Concerning Watchdog Cuts

Much ink has been spilled over the past several weeks about OPM Secretary Ben Barnes’s stated intention to impose further cuts on the state watchdog agencies’ budgets beyond what the General Assembly imposed last spring. State legislators, good government advocates (including me) and newspaper editorial pages have all criticized the proposed cuts. Governor Malloy recently stated that this is not an issue on which he intends to dig in his heels, a welcome indication of the administration’s willingness to work the issue out amicably.

But just in case that friendly effort to resolve the dispute is not successful, the agencies have stated that they may ask the Attorney General to opine on the legal issues in the case. This post is my take on the law. As I explain, while the watchdog agencies remain subject to the legislative budget ax, they are legally immune from gubernatorial budget cuts.

I.  First, a little background. In 2004, in response to concerns that then-governor John Rowland had targeted the state’s watchdog agencies for politically motivated budget cuts, the General Assembly enacted laws that expressly exempted the watchdog agencies from governor’s rescissionary authority. Conn. Gen.Stat. § 1-205a(b) states:

Notwithstanding any provision of the general statutes, the Governor shall not reduce allotment requisitions or allotments in force concerning the Freedom of Information Commission.

The General Assembly passed the same language protecting the Office of State Ethics and the State Elections and Enforcement Commission. See Conn. Gen. Stat. §§ 1-81a(b) and 9-7c(b).

Thus, while the watchdog agencies remain subject to budget cuts by the General Assembly–and have, in fact, felt the severe pain of budget cuts over the years, including last spring–the 2004 laws remain on the books and protect the agencies from a governor’s unilateral decision to reduce their budgets beyond what the legislature has appropriated.

II.  In spring of 2016, the General Assembly enacted Public Act 16-2 (special session) (P.A. 16-2). Section 34(a) states, “The Secretary of the Office of Policy and Management may make reductions in allotments for the executive branch for the fiscal year ending June 30, 2017, in order to achieve targeted savings of $ 68,848,968 in the General Fund during said fiscal year.” Similarly, section 35(a) provides, “The Secretary of the Office of Policy and Management may make reductions in allotments for the executive branch for the fiscal [years] year ending June 30, 2016, [and June 30, 2017,] in order to achieve budget savings of $ 93,076,192 in the General Fund during [each such] said fiscal year.”  Finally, section 34(c) limits the amount of permissible allotment reductions for the state’s community colleges, state college system and UCONN.

III.  Secretary Barnes appears to rely on sections 34 and 35 of P.A. 16-2 as authorizing him to reduce allotments to the watchdog agencies beyond what the General Assembly specifically authorized.  He seems to believe that sections 34 and 35 somehow repealed the laws passed in 2004.  Here is why his repeal analysis is legally incorrect.

First, nothing in P.A. 16-2 expressly repeals the laws passed in 2004. Indeed, P.A. 16-2 contains no reference whatever to Conn. Gen. Stat.  §§ 1-205a, 1-81a or 9-7c.

Second, P.A. 16-2 does not implicitly repeal the 2004 laws. The law is well-settled in Connecticut that “repeals by implication are not favored and will never be presumed where the old and new statute may well stand together.” State v. Carbone, 172 Conn. 242, 256–57 (1977) (citing cases). “Furthermore . . . ‘(i)f courts can by any fair interpretation find a reasonable field of operation for both statutes without destroying or perverting their evident meaning and intent, it is the duty of the courts to do so, thus reconciling them and according to them concurrent effect. Id.

P.A. 16-2 and the 2004 laws can reasonably be read as consistent with each other. A fair and reasonable interpretation of P.A. 16-2 and the 2004 laws is that they give the governor additional rescission authority over executive branch agencies, but not the watchdog agencies.

One may ask, “Isn’t it reasonable to read P.A. 16-2 as including the watchdog agencies within the governor’s budget cutting authority because they were not expressly protected from the authority, while the state’s higher education systems were?” The answer is that the General Assembly had already granted the watchdog agencies special protection in 2004 and, thus, did not need to mention them again in P.A. 16-2.

In short, because courts must adopt a construction of P.A. 16-2 and the 2004 laws that reconciles them unless it is impossible to do so, and because it is quite easy to read P.A. 16-2 as consistent with the 2004 laws, the Secretary’s position that P.A. 16-2 implicitly repealed or trumped the 2004 laws is incorrect.

III. In further support of the argument against repeal by implication, “the General Assembly is presumed to have knowledge of existing law when it legislates.” Envirotest Sys. Corp. v. Comm’r of Motor Vehicles, 293 Conn. 382, 398 (2009) (“the legislature, in enacting § 14–164c(e), “is presumed to have acted with knowledge of existing statutes and with an intent to create one consistent body of law….). Thus, when the legislature passed P.A. 16-2, it is presumed to have known of the language in the 2004 laws stating that it applied “notwithstanding any provision of the general statutes.” And it must be presumed that the legislature intended for P.A. 16-2 to be consistent with that language.

IV. In sum, if the legislature wanted to repeal the laws passed in 2004 to protect the watchdog agencies from gubernatorial budget cuts, it knew how to expressly repeal the 2004 statutes.  It did not do so.  Nor did it implicitly repeal them.  They remain in full force and effect and, therefore, must be respected and enforced.  I trust that the Attorney General, if asked, will concur with this analysis.

UPDATE (8/16/16):  Senator Fasano today formally asked the Attorney General for an opinion on the question discussed above.  Stay tuned for the AG’s response.