Who picks the chair of Connecticut's Board of Firearms Permit Examiners, the Board members or the Governor?

Plain-English summary

The chairperson of the Board of Firearms Permit Examiners was resigning, and the Board had used its own regulation (§ 29-32b-4a, "Election of officers") to elect a successor. Governor Malloy asked the AG whether the Board could do that, or whether the Governor held the appointment power under Conn. Gen. Stat. § 4-9a, which generally gives the Governor authority to appoint the chairperson and executive director of executive branch boards and commissions (with a short list of exceptions, none applicable here).

The AG concluded that § 4-9a controls. When a statute and a regulation conflict, the statute wins. Med-Trans of Connecticut, Inc. v. Department of Public Health and Addiction Services, 242 Conn. 152, 168 (1997), states the rule plainly. The Board's regulation either pre-dated § 4-9a or otherwise could not displace it. The Board was within the Executive Department and not one of the agencies expressly excepted from § 4-9a, so the Governor had appointment authority.

The opinion clarified that the regulation was not necessarily a nullity. It may still allow the Board to elect other officers if its underlying statutory authority supports that, but it could not control the chairperson selection.

The AG cited his own prior opinion (2011-006), which had reached the same result for the State Teachers' Retirement Board, where a Board regulation had let the Board pick its own chair for decades. The Governor had the appointment power under § 4-9a there too.

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.

Common questions

Q: What is § 4-9a?
A: A statute giving the Governor authority to appoint the chairperson and executive director of all boards and commissions in the Executive Department, except for the State Properties Review Board, the State Elections Enforcement Commission, the Commission on Human Rights and Opportunities, the Commission on Fire Prevention and Control, and the Citizens Ethics Advisory Board.

Q: Why was there a Board regulation that said something different?
A: The Board's regulation (§ 29-32b-4a) predated or simply paralleled § 4-9a and provided that the Board "shall elect its officers biennially." For decades, that may have been how the Board operated. The arrival or amendment of § 4-9a changed the legal landscape; the AG concluded the regulation had to yield.

Q: Can the Board still elect officers like a secretary or vice-chair?
A: Possibly. The opinion specifically said the regulation is not necessarily a nullity. The conflict with § 4-9a is limited to the chairperson selection. Other officers may be within Board control if the regulation otherwise has authority.

Q: How is this similar to the 2011 opinion on the State Teachers' Retirement Board?
A: Identical structure: a Board had been electing its own chair under a regulation, and § 4-9a was the controlling statute. The 2011 opinion used the slightly different doctrine that "a later statute repeals a prior irreconcilable administrative regulation" (citing Harper v. Tax Commissioner, 199 Conn. 133 (1986)). The 2013 opinion used the direct statute-over-regulation rule. Either reaches the same answer.

Background and statutory framework

The Board of Firearms Permit Examiners hears appeals from denials of firearms permits. Conn. Gen. Stat. § 29-32b creates the Board, eight of whose nine members are appointed by the Governor and one of whom is a retired Superior Court judge appointed by the Chief Court Administrator. Section 29-32b(a) says at least one Governor-appointed member must be a Connecticut-licensed lawyer who shall "act as chairman of the board during the hearing of appeals," but does not specify how the chairperson is chosen.

The Board's own regulations (§ 29-32b-4a) said the Board "shall elect its officers biennially." When the chairperson resigned, the Board elected a replacement. The Governor's question to the AG cut to whether § 4-9a's general gubernatorial appointment authority displaced the Board's election regulation.

The AG's analysis was straightforward: statutes prevail over conflicting regulations. The cases cited (Med-Trans, Rose v. FOIC, Austin v. Housing Authority) all stand for that proposition. The Board's regulation must yield.

Citations and references

Statutes and regulations:
- Conn. Gen. Stat. § 4-9a
- Conn. Gen. Stat. § 29-32b
- Regs., Conn. State Agencies § 29-32b-4a
- 2013 Conn. Pub. Acts No. 13-3, § 60

Cases:
- Med-Trans of Connecticut, Inc. v. Department of Public Health and Addiction Services, 242 Conn. 152, 168 (1997), statute prevails over conflicting regulation
- Rose v. Freedom of Information Commission, 221 Conn. 217 (1992), same
- Austin v. Housing Authority of City of Hartford, 143 Conn. 338 (1956), same
- Harper v. Tax Commissioner, 199 Conn. 133 (1986), later statute repeals conflicting regulation

Prior AG opinion:
- 2011 Conn. Op. Atty. Gen. 2011-006, same result for State Teachers' Retirement Board

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2013/opinion2013-09_boardoffirearms-pdf.pdf?rev=b4e42c386623430a9a034fea07ec18a0

Original opinion text

GEORGE C. JEPSEN
ATTORNEY GENERAL,

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

Office of The Attorney General
State of Connecticut

October 30, 2013

The Honorable Dannel P. Malloy, Governor
State of Connecticut

State Capitol

Hartford, CT 06106

Dear Governor Malloy:

This letter responds to your request for a formal legal opinion concerning
the authority to appoint a new chairperson for the Board of Firearms Permit
Examiners (the “Board”). We understand that the existing chairperson of the
Board is resigning effective November 1, 2013, and that the Board has elected a
new chairperson pursuant to section 29-32b-4a of its regulations. You have asked
whether the Board has the authority to make that appointment, or whether the
Governor possesses that power pursuant to Conn. Gen. Stat. § 4-9a. We conclude
that because the statutory provisions of Conn. Gen. Stat. § 4-9a prevail over the
Board’s regulations, the Governor, not the Board, has the authority to appoint the
Board’s chairperson.

Pursuant to Conn. Gen. Stat. § 29-32b, the Board consists of nine
members, eight of whom are appointed by the Governor and one of whom is a
retired Superior Court judge appointed by the Chief Court Administrator. Conn.
Gen. Stat. § 29-32b(a), as amended by 2013 Conn. Pub, Acts No. 13-3, § 60.
Although § 29-32b(a) provides that “[a]t least one member of the board appointed
by the Governor shall be a lawyer licensed to practice in this state who shall act a
chairman of the board during the hearing of appeals,” the statute does not specify
how the chairperson shall be selected.

The Board, however, has adopted regulations that purport to provide for
the election of officers, one of which is presumably, although not explicitly, the
chairperson. Specifically, the Board relies on § 29-32b-4a of its regulations,
entitled “Election of officers,” which provides in pertinent part that “[t]he Board
shall elect its officers biennially.” Regs., Conn. State Agencies, § 29-32b-4a, The
Board relied on this regulation in electing a new chairperson,

The Board’s reliance on § 29-32b-4a to permit it to elect its chairperson,
however, conflicts with the provisions of Conn. Gen. Stat. § 4-9a. Section 4-9a

October 30, 2013
The Honorable Dannel P. Malloy, Governor
Page 2

applies generally to all boards and commissions in the Executive Department,
with limited exceptions not relevant here, and provides, in pertinent part, that:

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

Conn. Gen, Stat. § 4-9a(a). Because the Board is within the Executive Department
and is not one of the entities specifically excepted from the statute, § 4-9 grants
the Governor the authority to appoint the Board’s chairperson.

It is a well settled principle that “[w]hen a statute and a regulation conflict,
the statute must prevail.” Med-Trans of Connecticut, Inc. v. Department of Public
Health and Addiction Services, 242 Conn. 152, 168 (1997); see also Rose _v.
Freedom of Information Commission, 221 Conn. 217, 229 (1992); Austin v.
Housing Authority of City of Hartford, 143 Conn. 338, 348-349 (1956).
Accordingly, given the clear conflict between the Board’s reliance on § 26-32b-4a
of its regulations and Conn. Gen. Stat. § 4-9a, the latter statutory provision must
prevail.’ We therefore conclude that pursuant to Conn. Gen. Stat. § 4-9a, the
Governor has the authority to appoint the Board’s chairperson.”

' We note that this conflict with § 4-9a does not necessarily render the Board’s regulation a nullity.
Our conclusion is only that the regulation must yield to the statutory process for appointing the
Board’s chairperson. This does not mean necessarily that the regulation prevents the Board from
electing other “officers” if it otherwise has authority to do so.

? We similarly opined in a 2011 opinion that the Governor has the authority pursuant to Conn.
Gen. Stat. § 4-9a to appoint the chairperson of the State Teachers’ Retirement Board,
notwithstanding a regulation permitting the Board to make the appointment, which the Board had
relied upon for decades to elect its own chairperson. 2011 Conn. Op. Atty. Gen. 2011-006, 2011
WL 5617500 (July 29, 2011), Although we concluded in that opinion that § 4-9a trumped the
conflicting regulation because it was adopted later, and “a later statute . . . repeals a prior
irreconcilable administrative regulation,” id., quoting Harper v. Tax Commissioner, 199 Conn.
133, 142 (1986), we could equally well have applied the principle that we apply in the present
opinion. Thus, our reliance on a different analysis in our 2011 opinion in no way alters our
conclusion here.

October 30, 2013
The Honorable Dannel P. Malloy, Governor
Page 3

GEORGE JEPSEN

Very truly yours,

ATTORNEY GENERAL