Is a municipal electric energy cooperative like CMEEC a political subdivision of Connecticut, so its records fall under the state records management program?

Formal Opinion 2013-3: CMEEC is a political subdivision for records management purposes

Plain-English summary

The Public Records Administrator at the Connecticut State Library asked whether the Connecticut Municipal Electric Energy Cooperative ("CMEEC") came within the records management program that the State Librarian administers under Conn. Gen. Stat. § 11-8. The statute applies to "books, records, papers and documents of the several towns, cities, boroughs, districts and other political subdivisions of the state." CMEEC had questioned a 1994 informal opinion concluding that municipal cooperatives were covered.

The AG reaffirmed the 1994 informal view. Municipal electric energy cooperatives are created by concurrent resolution of two or more municipal electric utilities, governed by representatives of those utilities, perform "an essential governmental function," can exercise eminent domain, and are tax-exempt as performers of public functions. Under the Supreme Court's framework in State ex rel. Maisano v. Mitchell, 155 Conn. 256 (1967), and Mayfield v. Goshen Volunteer Fire Co., 301 Conn. 739 (2011), those attributes mark a political subdivision. The opinion was careful to add that this conclusion only meant the State Librarian's records management responsibility extended to CMEEC; it left to the Librarian how to tailor retention schedules to the cooperative's particular functions.

Currency note

This opinion was issued in 2013. 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. § 11-8 directs the State Librarian, with the assistance of the Public Records Administrator, to develop and direct a records management program for state agencies in the executive department and for "the several towns, cities, boroughs, districts and other political subdivisions of the state." Section 11-8a gives the State Librarian authority to require inventories and submission of retention schedules. Neither statute defines "other political subdivisions."

CMEEC is a municipal electric energy cooperative formed under Chapter 101a of the General Statutes. A municipal cooperative is "a separate legal entity created by concurrent resolutions of two or more municipal electric utilities" for purposes of acquiring, constructing, or operating electric generation or transmission facilities. Conn. Gen. Stat. § 7-233b(7). Each represented municipality must consent. § 7-233c(a). The board consists of municipal utility representatives, who must be officials or employees of those utilities. The cooperative is a "public body corporate and politic" deemed to be exercising "an essential governmental function," § 7-233e(b), with powers including eminent domain. § 7-233e(b)(15). The legislature exempted municipal cooperatives from state and local taxation because their purposes are public. § 7-233s.

The AG's analysis followed the Connecticut Supreme Court's framework for identifying political subdivisions when the statutory text does not define the term. State ex rel. Maisano v. Mitchell, 155 Conn. 256, 263 (1967), described "political subdivision" as "broad and comprehensive" and as denoting any division of the state made by proper authorities, acting within constitutional powers, "for the purpose of carrying out a portion of those functions of the State which by long usage and the inherent necessities of government have always been regarded as public." Dugas v. Beauregard, 155 Conn. 573, 578 (1967), articulated three distinctive attributes: existence to discharge a function of local government, a prescribed area, and authority for subordinate self-government through officers selected by it. Mayfield v. Goshen Volunteer Fire Co., 301 Conn. 739 (2011), more recently cautioned that political-subdivision references generally cover "cities, towns, and other units of local government" unless the legislature expressly extended the term further.

What the AG concluded at the time

The AG concluded that CMEEC and other municipal cooperatives created under §§ 7-233a et seq. were political subdivisions of the state for Conn. Gen. Stat. § 11-8 purposes. The reasoning:

1. Municipal cooperatives are statutorily authorized, established by concurrent resolution of municipal electric utilities, and require consent from each represented municipality.
2. The managing body consists of municipal utility representatives who are themselves municipal utility officials or employees.
3. The legislature expressly deemed cooperatives to be "exercising an essential governmental function" and granted them powers (including eminent domain) typical of local units of government.
4. The legislature treated cooperatives as performing public purposes by exempting them from state and local taxation.

The AG distinguished prior cases where the entity in question was a nonstock corporation (Mayfield) or a mere geographical subdivision (Dugas). Municipal cooperatives, by contrast, were akin to regional councils of government, regional planning agencies, and transit districts, all of which the AG had previously concluded were political subdivisions in 2000-13 and 2008-008.

The AG was careful about the consequence: § 11-8 makes the State Librarian responsible for developing a records management program covering CMEEC, but § 11-8a leaves the Librarian significant discretion to tailor the program and retention schedule to the particular entity's mix of governmental and operational records.

Common questions

Did this opinion say CMEEC was a political subdivision for every statute?

No. The AG limited the holding to § 11-8 (records management). Past opinions and case law made clear that "political subdivision" can mean different things in different statutory contexts, so the conclusion did not automatically extend to, say, governmental immunity or tort liability.

Did the opinion give CMEEC any new authority?

No. The opinion was about whether the State Librarian had records management authority over CMEEC, not about CMEEC's own powers. The cooperative's statutory powers under §§ 7-233a et seq. were unchanged.

Why did the AG go through the Maisano/Dugas/Mayfield analysis if § 7-233e already calls cooperatives "public body corporate and politic"?

Because that phrase alone does not automatically mean "political subdivision." Many entities are public bodies corporate and politic without being political subdivisions for every purpose. The AG had to apply the Supreme Court's broader framework to reach the records-management conclusion.

Could the Librarian set a unique retention schedule for CMEEC?

Yes. The opinion specifically noted that § 11-8a gives the State Librarian discretion to account for differences between municipal cooperatives and other public agencies when crafting retention schedules.

What records are covered?

The AG did not enumerate categories. The statute covers "books, records, papers and documents" of political subdivisions, which by its terms is broad. The Librarian's authority to require an inventory and approve a retention schedule then governs what specifically must be retained and for how long.

Citations

• Conn. Gen. Stat. § 11-8 (records management program for state agencies and political subdivisions)
• Conn. Gen. Stat. § 11-8a (State Librarian authority to require inventories and retention schedules)
• Conn. Gen. Stat. §§ 7-233a et seq. (municipal electric energy cooperatives)
• Conn. Gen. Stat. § 7-233b(7) (definition of municipal cooperative)
• Conn. Gen. Stat. § 7-233c(a) (formation by concurrent resolution)
• Conn. Gen. Stat. § 7-233e(b) (governmental function and eminent domain)
• Conn. Gen. Stat. § 7-233s (tax exemption)
• State ex rel. Maisano v. Mitchell, 155 Conn. 256 (1967) (political subdivision definition)
• Dugas v. Beauregard, 155 Conn. 573 (1967) (distinctive attributes)
• Mayfield v. Goshen Volunteer Fire Co., 301 Conn. 739 (2011) (cautious construction)

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2013/power_pra_formal_opinion060713-pdf.pdf?rev=fb12cdf1f118415c943942982d8e1457

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
June 7, 2013

LeAnn R. Power, CRM
Public Records Administrator
Connecticut State Library
231 Capitol Avenue
Hartford, CT 06106

Dear Ms. Power:

You have requested a formal opinion as to whether the Connecticut Municipal Electric Energy Cooperative (CMEEC) is subject to the municipal records management program under Conn. Gen. Stat. § 11-8. CMEEC is a municipal electric energy cooperative created pursuant to Conn. Gen. Stat. § 7-233a et seq. Because we conclude that a municipal electric energy cooperative constitutes a political subdivision of the state within the meaning of Conn. Gen. Stat. § 11-8, CMEEC comes within the scope of the records management program authorized by that statute.

Background

This issue was addressed in informal advice from this Office to Eunice DiBella, the Public Records Administrator in 1994. The informal advice concluded that "[b]ecause such cooperatives are created by municipal special service districts — which are themselves subject to the authority of the public records administrator — to carry out essential governmental functions and hold governmental powers, the records of such cooperatives are public records which fall under the authority of the public records administrator." Mem. to Eunice DeBella dated Apr. 25, 1994, at 2. We understand that in recent discussions you have had with CMEEC, CMEEC questions the validity of this conclusion reached in the informal advice.

State statutes direct that the State Librarian, with the assistance of the Public Records Administrator, see Conn. Gen. Stat. § 11-8(b), develop and direct a records management program, including record retention schedules, for state agencies and political subdivisions of the state. Specifically, § 11-8 of the General Statutes provides:

Under the direction of the State Library Board, the State Librarian shall be responsible for developing and directing a records management program for the books, records, papers and documents of all state agencies within the executive department, and the books, records, papers and documents of the several towns, cities, boroughs, districts and other political subdivisions of the state, pursuant to section 11-8a.

Conn. Gen. Stat. § 11-8(a) (emphasis added). Section 11-8a in turn provides:

The State Librarian may require each such state agency, or each political subdivision of the state, to inventory all books, records, papers and documents under its jurisdiction and to submit to the State Librarian for approval retention schedules for all such books, records, papers and documents. . . .

Conn. Gen. Stat. § 11-8a(b) (emphasis added). The phrase "other political subdivisions of the state" is not statutorily defined.

CMEEC is a municipal electric energy cooperative (municipal cooperative) established pursuant to Chapter 101a of the General Statutes. A municipal cooperative is "a separate legal entity created by concurrent resolutions of two or more municipal electric utilities . . . in connection with the acquisition, construction, reconstruction, operation, repair, extension or improvement of electric power generation or transmission facilities. . . ." Conn. Gen. Stat. § 7-233b(7). A municipal cooperative is created by the concurrent resolutions adopted by the governing bodies of two or more municipal electric utilities. Conn. Gen. Stat. § 7-233c(a). Each of the municipalities represented by a municipal electric utility joining a municipal cooperative must consent to the formation of the municipal cooperative. Id. The municipal cooperative's board consists of representatives of the municipal electric utilities, and each such representative must be an official or employee of the municipal electric utilities. Id. Municipal cooperatives "shall constitute a public body corporate and politic, and in furtherance of its purpose of providing facilities for the generation and transmission of electric power such [municipal cooperative] shall be deemed to be exercising an essential governmental function. . . ." Conn. Gen. Stat. § 7-233e(b) (emphasis added). Municipal cooperatives are granted a wide range of powers, including the power of eminent domain. Conn. Gen. Stat. § 7-233e(b)(15). Because their purposes "are public purposes and a municipal cooperative will be performing an essential governmental function," the legislature has exempted municipal cooperatives from taxation by the state or any political subdivision of the state. Conn. Gen. Stat. § 7-233s. The statutes governing municipal cooperatives do not, however, expressly declare them to be political subdivisions of the state.

Analysis

Undefined references to political subdivisions are found throughout the General Statutes, and both the courts and this Office have had occasion to address whether various entities constituted political subdivisions for the purposes of particular statutes. For example, in determining that a local taxing district is a political subdivision for the purposes of the minority representation statute, the Supreme Court in State ex rel. Maisano v. Mitchell, 155 Conn. 256, 263 (1967), stated that

[t]he term 'political subdivision' is broad and comprehensive and denotes any division of the State made by proper authorities thereof, acting within their constitutional powers, for the purpose of carrying out a portion of those functions of the State which by long usage and the inherent necessities of government have always been regarded as public.

Id. at 263; see Black's Law Dictionary 1053 (5th ed. 1979) (quoting Maisano).

Shortly following Maisano, the Court in Dugas v. Beauregard, 155 Conn. 573 (1967), held that city and town consolidation districts were not political subdivisions for purposes of laws governing consolidation of local government units. The Dugas Court stated:

The attributes which are generally regarded as distinctive of a political subdivision are that it exists for the purpose of discharging some function of local government, that it has a prescribed area, and that it possesses authority for subordinate self-government through officers selected by it.

Id. at 578. The city and town consolidation districts were merely geographical subdivisions for the purpose of apportioning taxes and electing members to the city council. Thus, they did not have the "essential attributes" of a political subdivision. Id. at 578-79.

More recently, in Mayfield v. Goshen Volunteer Fire Co., 301 Conn. 739 (2011), the Supreme Court elaborated on the general meaning of political subdivision as it is typically used throughout the statutes. In Mayfield, the Court concluded that a town volunteer fire company was not a political subdivision for purposes of state Occupational Safety and Health Act, principally because the fire company was organized as a nonstock corporation and as such was not a unit of local government. Id. at 747-48. In so holding, the Court noted that statutory references to political subdivisions generally "establish a core set of entities — cities, towns, and other units of local government — that plainly fall within the meaning of political subdivisions." Id. at 747 (emphasis added). Moreover, it emphasized that when the legislature wanted a more expansive scope of political subdivision for a particular purpose, it had on occasion done so in specific statutory language. Id. at 748-49 (citing as examples Conn. Gen. Stat. §§ 19a-710(9), 7-462(b)).

The approach taken in these cases is consistent with that followed in several formal opinions of this Office. For example, this Office opined that the South Central Regional Council of Governments was a political subdivision for purposes of applying for "Brownfield" grants under a program funded by the federal Environmental Protection Agency. A.G. Opinion No. 2000-13 (Mar. 24, 2000). Applying Maisano's definition of political subdivision, the opinion noted that "[t]he authority to establish such regional councils of government derives from a duly enacted statute, and the councils themselves are in fact established by the actions of the component municipal bodies." Id. at 1. It further concluded that the planning functions of such councils constituted governmental functions within the Maisano's description of political subdivisions. Id.

Similarly, this Office has opined that regional councils of government, regional planning agencies, and transit districts all were political subdivisions for purposes of set-aside programs for small contractors and minority business enterprises under Conn. Gen. Stat. § 4a-60g. A.G. Opinion No. 2008-08 (Apr. 30, 2008). The opinion concluded that each of these entities were political subdivisions because they were "statutorily created by local governments through appropriate municipal actions," they were "autonomously self-governed," and their functions and duties were "inherently public." Id. at 5.

By contrast, this Office concluded that tourism districts created under former Conn. Gen. Stat. § 32-302 were not political subdivisions for purposes of exemption from sales tax under Conn. Gen. Stat. § 12-412. A.G. Opinion No. 1996-08 (May 28, 1996). The opinion concluded that tourism districts were geographic subdivisions only. Although the tourism districts "[a]rguably . . . carry out some governmental function" in promoting tourism, they had no authority for "subordinate self-government." Id. at 2.

Applying the principles from these cases and opinions, we conclude that a municipal cooperative such as CMEEC is a political subdivision of the state for the purposes of § 11-8. First, the authority to establish a municipal cooperative is statutory and requires the concurrent resolution of the participating municipal electric utilities as well as the consent and agreement of each municipality represented by the municipal electric utilities. Conn. Gen. Stat. § 7-233c(a). The managing body of the municipal cooperative is comprised of representatives of the municipal electric utilities, who are officials or employees of the municipal electric utilities. Id. Moreover, the legislature expressly provided that municipal cooperatives "shall be deemed to be exercising an essential governmental function. . . ." Conn. Gen. Stat. § 7-233e. Because municipal cooperatives have "public purposes" and perform "an essential governmental function," the legislature exempted them from taxation by the state and other political subdivisions. Conn. Gen. Stat. § 7-233s.

Given these attributes — a statutorily authorized entity created by municipal entities and governed by a body comprised of municipal representatives to carry out an essential governmental function — municipal cooperatives are akin to those entities that have been deemed to be political subdivisions and readily distinguishable from those that have not. Although the Court in Mayfield cautioned against construing the meaning of political subdivision beyond the traditional understanding of "cities, towns and other units of local government" in the absence of a more expansive statutory definition, this does not preclude a determination that an entity, such as a municipal cooperative, is a "unit of local government." Mayfield, 301 Conn. at 747-48. Plainly, municipal cooperatives are not mere geographical subdivisions of the state. They are quite different in form and governance than a nonstock corporation, such as a volunteer fire company, which Mayfield concluded was not a political subdivision. Instead, like regional councils of government, regional planning agencies, and transit districts that this Office has determined to be political subdivisions, municipal cooperatives are created through statutorily authorized municipal action. They perform a quintessential public purpose and governmental function typical of local units of government.

We therefore conclude that municipal cooperatives are political subdivisions for purposes of § 11-8. We note, however, that this conclusion means only that under that statute the State Librarian is responsible for developing a records management program for such entities. Section 11-8a affords the State Librarian significant discretion to tailor the program and retention schedule to the particular entity. We express no opinion about whether and to what extent your agency should account for the differences between municipal cooperatives and other public agencies, including municipal special service districts, when crafting the particular retention schedule for a cooperative.

We trust this is responsive to your question.

Sincerely yours,

GEORGE JEPSEN
ATTORNEY GENERAL