Does the State Teachers' Retirement Board pick its own chair, or does Connecticut law require the Governor to appoint that person?

Plain-English summary

The Connecticut Attorney General concluded that the chairperson of the State Teachers' Retirement Board had to be appointed by the Governor, not elected by Board members, despite a Board regulation dating back to 1945 that had provided otherwise.

Two provisions conflicted. The Board's longstanding regulation, Regs., Conn. State Agencies, § 10-183l-11(b), said that "[o]ne of the members of the board is elected by the board as its chair to serve for a one-year term." But Conn. Gen. Stat. § 4-9a, enacted in 1977, required the Governor to appoint the chair (and any executive director) of every executive branch board and commission, with only a handful of named exceptions: the Board of Governors of Higher Education, the State Properties Review Board, the State Elections Enforcement Commission, the Commission on Human Rights and Opportunities, the Citizen's Ethics Advisory Board, and the Commission on Fire Prevention and Control.

The Teachers' Retirement Board was clearly within the Executive Department and was not on that list. The AG applied the rule that a later statute supersedes an irreconcilable prior regulation, citing Harper v. Tax Com'r, 199 Conn. 133, 142 (1986). The 1977 statute, enacted to expand gubernatorial accountability over state boards, controlled over the older Board regulation.

Currency note

This opinion was issued in 2011. 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.

Background and statutory framework

Conn. Gen. Stat. § 10-183l(b) authorized the State Teachers' Retirement Board to "adopt regulations and rules not inconsistent with this chapter." Acting under that authority in 1945, the Board adopted § 10-183l-11(b) of the Regulations of Connecticut State Agencies, which provided for the Board to elect its own chair to a one-year term. According to the request, the Board had followed that practice for decades.

Conn. Gen. Stat. § 4-9a, enacted in 1977 (decades after the Board regulation), provided in relevant part:

The Governor shall appoint the chairperson and executive director, if any, of all boards and commissions within the Executive Department, except the Board of Governors of Higher Education . . . the State Properties Review Board, the State Elections Enforcement Commission, the Commission on Human Rights and Opportunities, the Citizen's Ethics Advisory Board, and the Commission on Fire Prevention and Control.

The Retirement Board was within the executive branch (Conn. Gen. Stat. § 10-183l(a) required the Governor to appoint five public members to the Board "in accordance with the provisions of section 4-9a"). It was not on the list of exceptions. The AG noted Senator Lieberman's 1977 floor remarks explaining the purpose of § 4-9a: to increase gubernatorial accountability over boards and commissions that had operated independently of the executive. That broad purpose reinforced the textual reading.

Under the canon that a later statute repeals an inconsistent prior regulation (Harper v. Tax Com'r, 199 Conn. 133, 142 (1986)), the 1977 statute superseded the 1945 Board regulation. The AG also cited an earlier opinion, Conn. Op. Atty. Gen. 91-006 (February 11, 1991), which had reached the same conclusion about § 4-9a superseding a 1933 statute setting terms of office for the Commissioners of Liquor Control. The Retirement Board's chair therefore had to be selected by gubernatorial appointment.

Common questions

Q: Did the Board's longstanding practice (since 1945) matter?
A: No. Long practice did not preserve a regulation that conflicted with a later statute. The AG applied the standard rule that a later statute supersedes an inconsistent prior regulation regardless of how long the regulation had been on the books.

Q: Which boards were exempt from § 4-9a's appointment requirement?
A: The statute listed six: the Board of Governors of Higher Education, the State Properties Review Board, the State Elections Enforcement Commission, the Commission on Human Rights and Opportunities, the Citizen's Ethics Advisory Board, and the Commission on Fire Prevention and Control. The Teachers' Retirement Board was not on the list.

Q: Did the Board need to formally repeal its 1945 regulation?
A: The opinion did not require a formal repeal. The regulation was superseded by operation of law. As a housekeeping matter, however, an agency would typically update or rescind the conflicting regulation to avoid confusion.

Q: Could the legislature have exempted the Board if it wanted to?
A: Yes. The AG noted that § 4-9a applied "except as provided in the general statutes," so the legislature could add the Retirement Board to the exception list. The opinion turned on the absence of any such exception.

Citations

Statutes: Conn. Gen. Stat. § 4-9a (Governor appoints chairs of executive branch boards); Conn. Gen. Stat. § 10-183l(a) (Board membership); Conn. Gen. Stat. § 10-183l(b) (Board rulemaking authority); Regs., Conn. State Agencies, § 10-183l-11(b) (1945 election-of-chair regulation).

Case: Harper v. Tax Com'r, 199 Conn. 133 (1986) (later statute supersedes irreconcilable prior regulation).

Prior AG opinion: Conn. Op. Atty. Gen. 91-006 (Feb. 11, 1991) (concluding § 4-9a superseded an earlier statute on Liquor Control Commissioners' terms).

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2011/opinionperez072911-1-pdf.pdf?rev=336e747bec4745d1b6271bad8a1d1ee5

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

GEORGE C. JEPSEN
ATTORNEY GENERAL

55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120

Office of The Attorney General
State of Connecticut

July 29, 2011

Ms. Darlene Perez
State Teachers' Retirement Board
765 Asylum Avenue
Hartford, CT 06106

Dear Ms. Perez:

You have inquired of my office whether the chairperson of the State
Teachers' Retirement Board ("Board") may be elected by the members of the
Board, pursuant to Regs., Conn. State Agencies, § 10-183l-11(b), or whether the
Governor, pursuant to Conn. Gen. Stat. § 4-9a, must instead appoint the
chairperson. We conclude that the Governor must appoint the Board chairperson.

To answer this question we must examine Conn. Gen. Stat. § 4-9a and §
10-183l to determine whether the Board's past practice of electing its chairperson
is permissible. Section 10-183l(b) provides in relevant part that the "board . . .
may adopt regulations and rules not inconsistent with this chapter . . . ." By
regulation, the Board adopted a procedure for electing its chairperson: "One of the
members of the board is elected by the board as its chair to serve for a one-year
term." Regs., Conn. State Agencies, § 10-183l-11(b). You report that this has
been the Board's practice since the adoption of this regulation in 1945.

Section 10-183l(a), however, presently provides, in relevant part, that
"[t]he Governor shall appoint five public members to said board in accordance
with the provisions of section 4-9a." (Emphasis added.) Section 4-9a, which was
enacted in 1977, requires the Governor to appoint the chairperson and executive
director of all executive branch boards and commissions, with only the exceptions
noted in the general statutes. Specifically, § 4-9a provides in relevant part that:

The Governor shall appoint the chairperson and executive
director, if any, of all boards and commissions within the
Executive Department, except the Board of Governors of Higher
Education . . . the State Properties Review Board, the State
Elections Enforcement Commission, the Commission on Human
Rights and Opportunities, the Citizen's Ethics Advisory Board, and
the Commission on Fire Prevention and Control.

(Emphasis added.) Clearly the Board falls "within the Executive Department"
and clearly as well the Board is not mentioned as an exception within Conn. Gen.
Stat. § 4-9a. Nor are we aware of any other statute that would exempt the Board
from the general rule in § 4-9a. Therefore, an apparent conflict exists between the
Board's regulation and § 4-9a.

It is well-established that "a later statute . . . repeals a prior irreconcilable
administrative regulation." Harper v. Tax Com'r, 199 Conn. 133, 142 (1986).
Therefore, § 4-9a, which was enacted later, supersedes the Board's earlier
regulation. See also Conn. Op. Atty. Gen. 91-006 (February 11, 1991)
(concluding that § 4-9a superseded a 1933 statute setting terms of office for the
Commissioners of Liquor Control).

It is also clear, upon examining the history of the enactment of Conn. Gen.
Stat. § 4-9a in 1977, that the legislature intended to expand the Governor's power
over virtually all state agencies. Senator Lieberman articulated the statute's
purpose clearly: "[W]hen we create bureaucracies or commissions that are above
and beyond the call of the people, . . . we are diminishing the extent to which our
government is pure democracy. By increasing the power of the Governor's office
through appointment and administrative control, we're increasing accountability."
20 Conn. S. Proc., pt. 7, 1977 Sess. 2681-82 (May 23, 1977) (remarks of Sen.
Lieberman). This interest in greater accountability clearly was one of the
purposes in establishing the Governor's broad power of appointment. Since this
power extends over all state boards and commissions, except those specified, the
legislature intended the Governor to appoint the chairperson of the State Teachers'
Retirement Board as well.

We therefore conclude that Conn. Gen. Stat. § 4-9a controls over the earlier
regulation enacted by the Board concerning the selection of the chairperson of the
Board. Accordingly, the chairperson of the Board shall be appointed by the
Governor pursuant to Conn. Gen. Stat. § 4-9a.

Very truly yours,

GEORGE JEPSEN
ATTORNEY GENERAL