Could Connecticut merge local workforce investment areas despite satisfactory performance?

Plain-English summary

In February 2002, Connecticut’s AG concluded that the state could not consolidate a local workforce investment area, or force its board to change its service area or essential operations, when the board had met the Workforce Investment Act’s performance and fiscal requirements. The initial designation was temporary, but the Act required an extension through the state plan period when the governor found that the area substantially met its local performance measures and sustained fiscal integrity.

The AG acknowledged the state board’s role in setting performance measures and the governor’s determinations under the federal Act. He also said the state’s general plan language contemplating consolidation did not displace the statutory requirements. Those requirements for local areas and boards were excluded from the Act’s waiver mechanism. The opinion was expressly subject to a final interpretation by the U.S. Secretary of Labor, whose response to Connecticut was pending.

Local workforce boards at the time

For a board that met the federal performance and financial tests, the AG read the Act as protecting continuation of its local area through the state plan period. The opinion did not treat the first two years’ temporary status as open-ended state power to redraw its area.

State workforce officials at the time

The AG viewed the governor’s evaluation of performance and fiscal integrity as decisive under the federal criteria. He said the state plan’s reference to possible consolidation was not a request for a federal waiver and that this category of requirements could not be waived in any event.

Currency note

This opinion was issued in 2002. 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.

Common questions

Q: Could Connecticut merge a workforce region after its two-year temporary designation?
A: The AG said not when the area substantially met its performance measures and sustained fiscal integrity. In that situation, he read federal law as requiring extension through the state plan period.

Q: Did the state workforce plan itself authorize consolidation?
A: No. The AG said its mention of possible changes reflected the temporary designation period and did not override the federal criteria for later designation.

Q: Could a federal waiver permit a change to local workforce areas?
A: The opinion said the Act excluded requirements concerning the establishment and functions of local areas and boards from the federal waiver authority.

Background and statutory framework

The House majority leader asked whether the state could consolidate workforce regions or compel a successful board to change its area or method of operation. The AG relied on the Act’s mandatory language governing extension after temporary designation and on a Labor Secretary letter to Oklahoma interpreting the same provision. He warned that Connecticut’s pending request for the Secretary’s view could bring further clarification.

Citations and references

Statutes: 29 U.S.C. § 2831(a)(3)(B); 29 U.S.C. § 2822(c)(1).

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/2002-formal-opinions/honorable-david-b-pudlin-legislative-office-building-2002006-formal-opinion-attorney-general-of-conn

Original opinion text

Honorable David B. Pudlin, Legislative Office Building, 2002-006 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

February 8, 2002

Honorable David B. Pudlin

Majority Leader

House of Representatives

Legislative Office Building

Room 4100

Hartford, CT 06106-1591

Dear Majority Leader Pudlin:

This will acknowledge and reply to your request of November 28, 2001 for an advisory opinion as to whether the State has the authority to consolidate workforce development regions pursuant to the federal Workforce Investment Act and, if so, what criteria must be satisfied before such consolidation is approved. You also ask whether a workforce development board which has demonstrated adequate fiscal capability and achieved satisfactory performance results can be forced to change its current service area or method of operation. We have been informed that the Connecticut Office of Workforce Competitiveness has requested a similar opinion from the United States Secretary of Labor.

For the reasons that follow our opinion is that, pursuant to the plain language of the Workforce Investment Act, the State does not have authority to consolidate such regions or force a workforce development board to change its current service area or method of operation unless the Governor determines that the workforce development board has not demonstrated adequate fiscal capability or achieved satisfactory performance results. Our opinion is in accord with an interpretation of the federal Workforce Investment Act issued by the United States Secretary of Labor to the State of Oklahoma, dated October 30, 2001. The issues addressed in this opinion, however, may be subject to further clarification by the U. S. Secretary of Labor in response to the request for advice made by the Office of Workforce Competitiveness.

29 U.S.C. § 2831(a)(3)(A) of the federal Workforce Investment Act provides that the Governor shall approve any request for temporary designation as a local workforce investment area from any unit of general local government (including a combination of such units) with a population of 200,000 or more that was a service delivery area under the Job Training Partnership Act on the day before August 7, 1998, if the Governor determines that it meets certain criteria. These criteria are, pursuant to 29 U.S.C. §§ 2831(a)(3)(A)(i) and (ii), that the area has performed successfully, in each of the last two years prior to the request for which data are available, in the delivery of services to participants under provisions of the Job Training Partnership Act and has sustained the fiscal integrity of the funds used by the area to carry out activities under those provisions. Pursuant to 29 U.S.C. § 2831(a)(3)(B), a temporary designation shall be for not more than two years, "after which the designation shall be extended until the end of the period covered by the State plan if the Governor determines that, during the temporary designation period, the area substantially met (as defined by the State board) the local performance measures for the local area and sustained the fiscal integrity of the funds used by the area to carry out activities" under the Workforce Investment Act.

In an opinion letter to Governor Frank Keating of Oklahoma, dated October 30, 2001, attached hereto as Exhibit A, Elaine L. Chao, U.S. Secretary of Labor, interpreted the Workforce Investment Act as requiring subsequent designation of a workforce investment area by a Governor after its temporary designation, until the end of the period covered by the State plan, if the area has substantially met the local performance measures for the local area and has sustained the fiscal integrity of the funds used to carry out activities under the Act. An opinion letter of the federal Secretary of Labor interpreting a provision of a federal labor statute administered by the U.S. Department of Labor is entitled to deference if persuasive, and the Secretary of Labor’s opinion here is clearly supported by the plain language of the Workforce Investment Act. See Christensen v. Harris County, ___ U.S. , 120 S.Ct. 1655, 1662-63 (2000). Moreover, it is well established that the use of the word "shall" in a statute ordinarily expresses a legislative command. Alabama v. Bozeman, ___ U.S. , 121 S.Ct. 2079, 2085 (2001); In re Barbieri, 199 F.3d 616, 619 (2d Cir. 1999). Here the legislative directive to extend the designation of the local area in the federal Act supports interpretation of "shall" as mandatory.

While the provisions of the federal law appear to speak in terms of the Governor’s discretionary determinations of substantially meeting local performance measures and sustaining the fiscal integrity of the funds and the State Board’s discretionary determination of local performance measures, the fact is that the Governor is constrained by the statute to approve subsequent designation of a local area for the remainder of the State plan term unless he has determined that the local area has not substantially met local performance measures and has not sustained fiscal integrity under the narrowly tailored and specific requirements provided in federal law and only modified in part by the State Boards. A State Board has some discretion with respect to local performance measures and may affect policy through the State plan, but it has no power to alter the current service area and the essential method of operation of a local workforce investment board if the local board has substantially met the performance measures the Board has set and sustained the fiscal integrity requirements of the federal Workforce Investment Act.

While the State of Connecticut’s five-year state workforce investment plan, approved by the federal Secretary of Labor, makes reference to the possible consideration of consolidation and change of local areas by the State during the first two years of the plan, the state plan merely reflects the "temporary" nature of the initial two year designation under the federal law. At the conclusion of the two year period the subsequent designation of local areas is controlled by the above federal statutory requirements. The Workforce Investment Act contains provisions for the federal Secretary of Labor’s approval of a State request for waiver of certain statutory requirements of the Act, but statutory or regulatory requirements for the establishment and functions of local areas and local boards, including the subsequent designation of local areas pursuant to 29 U.S.C. §§ 2831 (a)(3)(B), are expressly excepted from waiver. 29 U.S.C. §§ 2939(i)(4)(A)(i), 2942(a)(1). Accordingly, the requirements for subsequent designation of local areas can not be waived by the Secretary of Labor. Moreover, the waiver provisions of the Act appear to require specific waiver requests containing detailed supporting information on the purposes and process for waiver determination and implementation. 29 U.S.C. §§ 2939(i)(4)(B), 2942(b). Although the State's plan, as submitted to the Secretary of Labor, contains general language raising the possibility of changing the designated local areas, the plan does not request a waiver of the federal statutory requirements for final designation nor does it provide the information required by the Act for waiver requests. Since the provisions of the Act relating to the establishment and functions of local areas and local boards could not, in any event, be waived by the Secretary of Labor, the State must comply with those federal statutory requirements. 29 U.S.C. § 2822(c)(1).

Pursuant to the above analysis, it is our conclusion that the State has no authority to consolidate local workforce investment areas or change the current service areas or method of operation unless the Governor makes a determination that a workforce development board has not demonstrated adequate fiscal capability or achieved satisfactory performance results as defined in the statute. Our opinion is, however, subject to a final determination and interpretation of the Workforce Investment Act by the United States Secretary of Labor.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

Richard T. Sponzo

Assistant Attorney General

RB/RTS/dh