Could Connecticut's consumer protection agency garnish DOT payments owed to a contractor to collect restitution?

Plain-English summary

The Connecticut Attorney General concluded that the Department of Consumer Protection could not attach or garnish payments the Department of Transportation owed Hartford Paving for bridge work. Hartford Paving had been ordered to pay about $49,000 in restitution to home improvement customers, and DOT was processing payments exceeding that amount. The opinion said the general attachment and garnishment statutes did not authorize making the state a garnishee in these circumstances. State sovereign immunity required an express statutory basis before the state could be subjected to that process.

The Attorney General said the answer stayed the same even though Consumer Protection, the agency seeking to garnish the payments, was itself a state agency. The opinion identified a separate statutory route allowing the Attorney General to pursue recovery of money paid from the Home Improvement Guaranty Fund if the commissioner determined that the company had assets. It did not say DOT could divert the contract payments directly to satisfy the restitution order.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

For state payment officers: The opinion treated DOT as outside the general attachment and garnishment process for payments owed to this contractor. It found no express statutory authority making the state subject to garnishment on these facts.

For Consumer Protection: The agency's status as part of the state did not supply authority to seize money DOT owed Hartford Paving. The opinion pointed instead to Conn. Gen. Stat. § 20-432(o) for possible recovery of money expended from the guaranty fund when the commissioner determined that the company had assets.

For contractors and creditors: The opinion distinguished garnishment, which reaches a third party's debt to a defendant, from attachment of property held by the defendant. It applied a rule barring the state from being made a garnishee without an express statutory waiver. A footnote identified a separate statute allowing wage executions against the state as an employer.

Common questions

Could one Connecticut agency garnish money another agency owed a contractor?

The Attorney General said no on these facts. The agency seeking the funds still needed statutory authority to make the state a garnishee, and the general attachment statutes supplied none.

Did the Home Improvement Guaranty Fund give Consumer Protection a way to take DOT's pending payment?

The opinion did not identify a right to take that payment. It cited a separate recovery action for funds expended from the guaranty fund if the commissioner found that the company had assets.

Was the state exempt from every form of payment withholding?

The opinion addressed attachment and garnishment of DOT's contractor payments. Its footnote noted that Connecticut had expressly subjected the state, as an employer, to wage executions under Conn. Gen. Stat. §52-361a(g).

Background and statutory framework

Hartford Paving had performed bridge painting under DOT purchase orders. After its home improvement registration was revoked and restitution ordered, the transportation commissioner asked whether Consumer Protection could attach or garnish payments DOT was processing. The opinion relied on Connecticut cases saying statutory attachment requires legislative authorization and that public officers could not be made garnishees without it. It found no applicable authorization in the general attachment provisions, while identifying Conn. Gen. Stat. § 20-432(o) as a distinct possible recovery path.

Citations and references

The opinion quotes Essex Group, Inc. v. Ducci Electric Co., 181 Conn. 524, 525, 436 A.2d 16 (1980), and discusses Stillman v. Isham, 11 Conn. 124 (1835). The original opinion and its wage-execution footnote follow.

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/1991-formal-opinions/honorable-emil-h-frankel-department-of-transportation-1991025-formal-opinion-attorney-general-of-con

Original opinion text

Honorable Emil H. Frankel, Department of Transportation, 1991-025 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

July 29, 1991

Honorable Emil H. Frankel

Commissioner

Department of Transportation

24 Wolcott Hill Road

Wethersfield, CT 06109

Dear Commissioner Frankel:

By letter dated July 19, 1991, you state that a company called Hartford Paving Inc. ("Hartford Paving" ) has been performing bridge painting work for the Department of Transportation ("DOT") pursuant to purchase orders issued to it by the DOT in accordance with Contract Award No. 890-A-13-1054-C. You further state that you have been informed that Hartford Paving's certificate of registration under the Home Improvement Act, Conn. Gen. Stat. §20-418 et seq., was revoked by the Department of Consumer Protection and that Hartford Paving was ordered to pay approximately $49,000 in restitution to its customers but that it has failed to do so. In view of the fact that the DOT is processing payments to Hartford Paving in excess of $49,000 for work it has done on various DOT bridge projects, you have asked our opinion as to whether the Department of Consumer Protection has a right to attach or garnish these funds. For the reasons that follow, it is our opinion that these funds are not subject to attachment or garnishment.

In general, the terms "attachment" and "garnishment" refer to prejudgment and post judgment remedies available to parties in court actions. "An attachment of property on mesne process is a mode of obtaining security for the satisfaction of any judgment which the plaintiff may finally recover..." Atlas Garage & custom Builders, Inc. v. Hurley, 167 Conn. 248, 251, 355 A.2d 286 (1980), quoting from Morgan v. New York National Bldg. & Loan Assn., 73 Conn. 151, 46 A. 877 (1900). Garnishment is a form of attachment looking to the impounding of funds due a defendant. "However, attachment and garnishment differ in character in t hat attachment is directed against property of the principal defendant which is in his possession or under his control, while the object of garnishment is to reach an indebtedness due to the principal defendant by a third person, or property in the possession or control of a third person which belongs to the principal defendant." 7 C.J.S. Attachment §2. p. 227.

"The remedy of attaching and securing a defendant's property to satisfy a judgment which the plaintiff may recover is unknown to the common law and is founded on and regulated by our statutory law." Essex Group, Inc. v. Ducci Electric Co., 181 Conn. 524, 525, 436 A.2d 16 (1980). The general statutory scheme governing attachment and garnishment is found in chapters 903a through 906 of the Connecticut General Statutes. A review of these statutes, however, fails to disclose any provision specifically subjecting the State to an action for attachment or garnishment under the circumstances outlined in your letter.1 This is important because Connecticut court decisions have held that the State, as a consequence of its sovereignty, is not subject to statutory obligations or liabilities absent an express waiver of sovereign immunity by the legislature. This principle has been applied in garnishment situations. Prudential Mortgage & Investment Co. v. New Britain, 1q23 Conn. 390, 394, 195 A.609 (1937). For example, in the early case of Stillman v. Isham, 11 Conn. 124 (1835), our Supreme Court ruled that funds held by a state's attorney in his public capacity could not be garnished.

The pervading principle, in all these cases, is, that public officers, who are bound to transact the public business by certain rules, and in certain forms, shall not be exposed to the expense, the inconvenience and hazard incident tot has process.

11 Conn. at 127. See also, Morgan v. Schmid , 27 Conn. Sup. 481m 244 A.2d 824 (1965).

In Millstone Point Co. v. Rutka, 27 Conn. Sup. 482, 244 A.2d 829 (1966), the court made the observation that:

Stephenson, Connecticut Civil Procedure §36(d), (e) and (f), pages 78 and 79, states that the rule in the United States is that the state cannot be made a garnishee. While no statute exists in Connecticut, it would be safe to assume that the rule obtains herein the absence of statutes authorizing procedures to allow the state to be garnishee.

The question of whether the Highway Commissioner (now the Commissioner of Transportation) was subject to the process of garnishment was answered in the negative in an Attorney General's opinion rendered in 1950. See, 26 Conn. Op. Atty. Gen. 268 (August 1, 1950).

The fact that the entity seeking to attach or garnish funds in the possession of the DOT may be another State agency does not alter the basic legal analysis and result. The other State agency, in this case the Department of Consumer Protection, would have to rely on a statutory grant of authority for obtaining an attachment or garnishment. As noted above the general statutory provisions contained in chapter 903a through 906 provide no such authority in this regard. However, other remedies exist for the Attorney General, representing the Department of Consumer Protection, to recover monies expended from the Home Improvement Guaranty Fund. See Conn. Gen. Stat. § 20-432(o). (Attorney General may take action to recover funds if the Commissioner determines that the company in question has assets).

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

RB/mfk

1 The legislature has provided that the State, as an employer, is subject to wage executions. See Conn. Gen. Stat. §52-361a(g).