Does a Connecticut Department of Correction administrative directive become binding the moment the Commissioner signs it, or does it have to go through formal rulemaking first?

Plain-English summary

The Connecticut Attorney General concluded that Administrative Directive 9.12, signed by the Commissioner of Correction on September 30, 2011, became binding on the Department immediately upon the Commissioner's signature, without any rulemaking under the Uniform Administrative Procedure Act.

Administrative Directive 9.12 was an inmate-classification directive that set a mandatory ten-day in-custody assessment period for inmates sentenced under Conn. Gen. Stat. § 14-215 (driving while license suspended/revoked) and § 14-227a (driving under the influence) before they could be considered for home confinement. The directive implemented Section 26 of Public Act 11-51 (effective July 1, 2011), which allowed the Commissioner, after a risk and needs assessment, to release such inmates to home confinement subject to conditions including possible electronic monitoring and continuous alcohol monitoring.

The AG located the Commissioner's authority in Conn. Gen. Stat. § 18-81, which gave the Commissioner broad authority over administration, supervision, and classification of inmates. Both the Connecticut Appellate Court and the Connecticut Supreme Court had already held in Beasley v. Commissioner of Correction that DOC Administrative Directives were binding on the Department upon the Commissioner's signature and were not subject to UAPA notice-and-comment rulemaking. Because Public Act 11-51 § 26 expressly let the Commissioner exercise discretion (including the discretion to require an inmate to serve the full sentence in a facility), the AG reasoned that the lesser power of requiring a mandatory in-custody assessment period before any home-confinement consideration was clearly within the Commissioner's authority.

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

Section 26 of Public Act 11-51, effective July 1, 2011, gave the Commissioner of Correction the authority, after admission and a risk and needs assessment, to release certain DUI and driving-while-suspended offenders to home confinement. The provision stated:

Notwithstanding any provision of the general statutes, whenever a person is sentenced to a term of imprisonment pursuant to subsection (g) of section 14-227a of the general statutes or section 14-215 of the general statutes, and committed by the court to the custody of the Commissioner of Correction, the commissioner may, after admission and a risk and needs assessment of such person, release such person to such person's residence subject to the condition that such person not leave such residence unless otherwise authorized.

The statute authorized electronic monitoring, including GPS and continuous alcohol monitoring. Released inmates remained in the Commissioner's custody and could be returned to confinement on violation of release conditions. The statute also directed the Commissioner to establish an advisory committee to develop training protocols, evaluate outcomes, and provide victim impact panels and treatment.

The Commissioner's Administrative Directive 9.12 implemented the statute by setting a uniform ten-day assessment period before home-confinement release could be considered. The directive sat within Chapter 9 (the Classification Chapter) of the Department's directives. A.D. 9.2 defined classification as "the ongoing process of collecting and evaluating information about each inmate to determine the inmate's risk and need level for appropriate confinement location, treatment, programs, and employment assignment whether in a facility or the community."

The Commissioner's general authority for the directive came from Conn. Gen. Stat. § 18-81, which provided that the Commissioner "shall administer, coordinate and control the operations of the department" and "shall be responsible for establishing disciplinary, diagnostic, classification, treatment . . . programs throughout the department."

The Beasley litigation had already established that DOC Administrative Directives were exempt from UAPA notice-and-comment rulemaking under Conn. Gen. Stat. § 4-166 et seq. In Beasley v. Commissioner of Correction, 50 Conn. App. 421 (1998), aff'd 249 Conn. 499 (1999), the Appellate Court explained that the Commissioner's § 18-81 directives "were not promulgated in accordance with the Uniform Administrative Procedure Act" and were "utilized to establish the parameters for the operation of the facilities," set procedures for dealing with inmates, define inmate classifications, and adhere to the Department's mission. A 1997 legislative amendment added classification regulations to the list of DOC regulations that did not have to be promulgated under the UAPA, both prospectively and retroactively. See also Abed v. Commissioner of Correction, 43 Conn. App. 176 (1996); Abed v. Armstrong, 209 F.3d 63 (2d Cir. 2000).

Applying that framework, the AG concluded that A.D. 9.12 was effective on signature and binding on Department staff from September 30, 2011 forward. The Commissioner's discretion under Public Act 11-51 § 26 to deny home-confinement release entirely included the lesser power to require a mandatory assessment window.

Common questions

Q: What did Administrative Directive 9.12 actually do?
A: It established a mandatory ten-day in-custody assessment period for inmates sentenced under Conn. Gen. Stat. §§ 14-215 (driving while license suspended/revoked) and 14-227a (DUI) before the Commissioner would consider releasing them to home confinement under Public Act 11-51 § 26.

Q: Why didn't the directive have to go through notice and comment?
A: Connecticut's courts had already held in Beasley that DOC Administrative Directives were not "regulations" under the Uniform Administrative Procedure Act. The Commissioner's authority to issue directives comes directly from Conn. Gen. Stat. § 18-81, and the legislature in 1997 confirmed that classification rules were outside UAPA reach.

Q: Could a sentenced inmate insist on immediate home-confinement consideration?
A: No. Public Act 11-51 § 26 made release a matter of Commissioner discretion ("the commissioner may, after admission and a risk and needs assessment . . . release"). The AG reasoned that if the Commissioner could deny home-confinement release entirely, he could require a brief in-custody assessment period before any consideration.

Q: What conditions could attach to home-confinement release under Public Act 11-51 § 26?
A: The statute allowed electronic monitoring (potentially including GPS and continuous alcohol monitoring), supervision by DOC employees, a no-leave-residence condition unless otherwise authorized, and any other conditions the Commissioner deemed appropriate. Violations could trigger revocation and return to confinement.

Q: Was the directive limited to DUI and driving-while-suspended sentences?
A: Yes. By its terms, Public Act 11-51 § 26 and Administrative Directive 9.12 applied to persons sentenced under Conn. Gen. Stat. § 14-227a(g) (DUI) and § 14-215 (driving under suspension/revocation). The opinion did not address inmates sentenced under other statutes.

Citations

Statutes: Conn. Gen. Stat. § 14-215 (driving under suspension/revocation); Conn. Gen. Stat. § 14-227a (DUI); Conn. Gen. Stat. § 18-81 (Commissioner of Correction's authority); Conn. Gen. Stat. § 4-166 (Uniform Administrative Procedure Act); Public Act 11-51, section 26 (DUI/driving-suspended home-confinement authority).

Cases: Beasley v. Commissioner of Correction, 50 Conn. App. 421 (1998), aff'd 249 Conn. 499 (1999) (DOC Administrative Directives effective on signature, not subject to UAPA); Abed v. Commissioner of Correction, 43 Conn. App. 176 (1996); Abed v. Armstrong, 209 F.3d 63 (2d Cir. 2000).

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2011/opinionarnone100311-pdf.pdf?rev=e415bb8ed5fe4354aac71b233dc29ec4

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

September 30, 2011

Hon. Leo C. Arnone
Commissioner of Correction
24 Wolcott Hill Rd.
Wethersfield, CT 06109

Dear Commissioner Arnone,

You have requested a legal opinion as to whether Administrative Directive (A.D.) 9.12,
signed by you on September 30, 2011, is binding and effective on the Department of
Correction as of the date it is issued. A.D. 9.12 is effective and binding on the
Department of Correction immediately upon your signing as the Commissioner, and
members of the Department of Correction are compelled to comply with its requirements
at that point in time.

A.D. 9.12 is an inmate classification directive and is found within Chapter 9, the
Classification Chapter of your agency's directives. These directives also include A.D.
9.2 which defines classification to include, "the ongoing process of collecting and
evaluating information about each inmate to determine the inmate's risk and need level
for appropriate confinement location, treatment, programs, and employment assignment
whether in a facility or the community." See A.D. 9.2, § BA.

A.D. 9.12 sets forth the time period to classify and guidelines necessary for the
supervision of persons convicted under Conn. Gen. Stat. § 14-215 and § 14-227a. In this
case, A.D. 9.12 provides for a mandatory period of 10 days incarceration in order to
complete the necessary assessment and classify persons convicted under those statutes,
including but not limited to a determination of whether those persons so convicted should
serve the remainder of any term of imprisonment as home confinement. This directive is
intended in part to implement the provisions of Public Act 11-51, section 26 which
provides as follows:

Sec. 26. (NEW) (Effective July 1, 2011) Notwithstanding any provision of the
general statutes, whenever a person is sentenced to a term of imprisonment
pursuant to subsection (g) of section 14-227a of the general statutes or section 14-215 of the general statutes, and committed by the court to the custody of the
Commissioner of Correction, the commissioner may, after admission and a risk
and needs assessment of such person, release such person to such person's
residence subject to the condition that such person not leave such residence unless
otherwise authorized. Based upon the assessment of such person, the
commissioner may require such person to be subject to electronic monitoring,
which may include the use of a global positioning system and continuous
monitoring for alcohol consumption, and to any other conditions the
commissioner deems appropriate. Any person released pursuant to this section
shall remain in the custody of the commissioner and shall be supervised by
employees of the department during the period of such release. Upon the violation
by such person of any condition of such release, the commissioner may revoke
such release and return such person to confinement in a correctional facility. The
commissioner shall establish an advisory committee for the purpose of developing
a protocol for the training of correctional staff assigned to the assessment and
supervision of offenders eligible for release pursuant to this section, evaluation of
outcomes of participation in such release, the establishment of victim impact
panels and the provision of treatment to such participants. For purposes of this
section, "continuous monitoring for alcohol consumption" means automatically
testing breath, blood or transdermal alcohol concentration levels and tamper
attempts at least once every hour regardless of the location of the person being
monitored.

While section 26 of P.A. 11-51 authorizes the Commissioner of Correction to release a
person so convicted to home confinement, the Commissioner has the discretion to decline
to authorize any such person to be released, and may require the inmate to serve the
entire term of imprisonment in a correctional facility. Obviously, if the Commissioner
has the authority to require the inmate to serve the entire term of imprisonment
incarcerated in a correctional facility, he has the lesser included power to require certain
mandatory assessment periods and the length of incarceration required, at a minimum, for
such assessment, in order to properly classify an inmate.

Conn. Gen. Stat. § 18-81 gives the Commissioner of Correction the authority to classify
inmates, and specifically states, in relevant part,

The Commissioner of Correction shall administer, coordinate and control the
operations of the department and shall be responsible for the overall supervision
and direction of all institutions, facilities and activities of the department. He
shall establish rules for the administrative practices and custodial and
rehabilitative methods of said institutions and facilities in accordance with
recognized correctional standards. . . . He shall be responsible for establishing
disciplinary, diagnostic, classification, treatment . . . programs throughout the
department. . . .

Both the Connecticut Appellate and the Supreme Courts have recognized that DOC
Administrative Directives are binding on DOC and become effective upon signing by the
Commissioner. See Beasley v. Commissioner of Correction, 50 Conn. App. 421, 424-425 (Conn. App. Ct. 1998), affirmed, 249 Conn. 499; 733 A.2d 833 (1999). In Beasley,
the Appellate Court stated:

[T]he commissioner testified, and the court found, that his authority is established
pursuant to General Statutes § 18-81. Pursuant to this authority, the
commissioner has promulgated a set of directives, which are written guidelines
pertaining to several correctional facilities. These directives were not
promulgated in accordance with the Uniform Administrative Procedure Act
(UAPA), General Statutes § 4-166 et seq., and are utilized to establish the
parameters for the operation of the facilities. These directives set forth
procedures for dealing with inmates, define inmate classifications and are used as
guidelines to adhere to the department's mission to maintain secure, safe and
humane correctional facilities.

Beasley, 50 Conn. App. at 424-425 (emphasis added); see also Abed v. Commissioner of
Correction, 43 Conn. App. 176, 682 A.2d 558, cert. denied, 239 Conn. 937, 684 A.2d 707
(1996), Abed v. Armstrong, 209 F.3d 63 (2d Cir. 2000), cert. denied, 531 U.S. 897
(2000). Accordingly, A.D. 9.12, like other DOC administrative directives, is not subject
to notice, comment and other review requirements set forth in the UAPA, but rather
requires only your signature to become effective.

For all the foregoing reasons, I conclude that the Commissioner of Correction has the
discretion and authority to immediately implement A.D. 9.12, effective September 30,
2011, and that the provisions of this directive are binding and effective commencing
September 30, 2011, notwithstanding any other provision of the General Statutes.

GEORGE JEPSEN
ATTORNEY GENERAL

In 1997, classification regulations were added to the list of DOC regulations which did not have to be
promulgated pursuant to the UAPA, not only prospectively but also retroactively, to validate any
procedural defect that may have occurred during the pre-1997 adoption and enforcement of regulations
such as Administrative Directive 9.4. Beasley v. Commissioner of Correction, 50 Conn. App. 421, 436 (1998).