Does Connecticut's prevailing wage law apply to construction and renovation projects done by local housing authorities?

Formal Opinion 2013-10: Housing authorities are political subdivisions for prevailing wage, but project status is case-by-case

Plain-English summary

The Commissioners of Labor and Housing asked the same question from opposite sides. Did Connecticut's prevailing wage statute apply to construction and renovation projects done by local housing authorities? The Labor Commissioner said yes, treating housing authorities as political subdivisions. The Housing Commissioner relied on older AG opinions and superior court cases that had treated housing authorities as something less than political subdivisions. The AG resolved the disagreement in two parts. First, housing authorities are political subdivisions of the state for purposes of Conn. Gen. Stat. § 31-53. Their statutory powers, municipal-government appointment of commissioners, prescribed geographic territory, and self-governing structure all fit the Supreme Court's framework in Maisano, Dugas, and Mayfield. Second, whether any particular housing authority project is a "public works project" subject to prevailing wage requires a fact-based, case-by-case analysis looking at the public source of financing, the extent of government involvement, and the public purpose served. The AG declined to declare all housing authority projects "public works" in the abstract.

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. § 31-53(a) applies the prevailing wage requirement to any contract for the construction, remodeling, refinishing, refurbishing, rehabilitation, alteration, or repair of "any public works project by the state or any of its agents, or by any political subdivision of the state or any of its agents." Neither "political subdivision of the state" nor "public works project" is statutorily defined.

Housing authorities are creatures of statute. They are "public body[ies] corporate and politic, exercising public powers," § 8-44(a), created by resolution of one or more municipalities, § 8-40, with five commissioners appointed by the municipal chief executive for five-year terms, § 8-41(a). Their statutory powers include acquiring, leasing, constructing, repairing, and operating housing projects; investigating housing conditions; promoting low- and moderate-income housing; establishing police forces under § 8-44b; and exercising eminent domain. Bonds issued by a housing authority are "issued for an essential public and governmental purpose," § 8-58. The statutes do not expressly call housing authorities "political subdivisions."

The Supreme Court framework for identifying political subdivisions where the statute is silent:

• Maisano v. Mitchell, 155 Conn. 256 (1967): "broad and comprehensive" term denoting "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."
• Dugas v. Beauregard, 155 Conn. 573 (1967): distinctive attributes are existence for 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): generally limited to "cities, towns, and other units of local government" unless the legislature expressly extends the term.

Prior superior court cases (Cavanaugh, Majette, Quinones) had held housing authorities were not political subdivisions for governmental immunity from tort, citing their statutory capacity to sue and be sued and to obtain insurance. Several older AG opinions had reached similar conclusions for other statutes (minority representation, smoking restrictions, public works retainage). One superior court case, Secondo v. Housing Auth. (2012), had treated housing authorities as political subdivisions for ERISA purposes.

What the AG concluded at the time

The AG concluded that housing authorities are political subdivisions for § 31-53 purposes but that public-works status for prevailing wage is project-specific.

Part 1: Political subdivision status. The AG worked through the Maisano-Dugas-Mayfield framework:

1. Function of local government. Housing authorities exercise public powers under § 8-44(a), including operating housing projects, improving housing conditions, creating and preserving low- and moderate-income housing, establishing a police force, and using eminent domain. These are "functions of the State which by long usage and the inherent necessities of government have always been regarded as public," echoing Maisano.

2. Prescribed area. A housing authority operates within the geographic boundaries of the municipality (or municipalities, for regional authorities) that establish it. Prior AG Op. 2012-005 had confirmed the geographic limitation.

3. Subordinate self-government. Housing authorities exercise their statutory authority autonomously through commissioners appointed by municipal officials. The AG explicitly rejected the older "limited powers means no self-government" reasoning in earlier opinions like AG Op. to Deakin (1979). The right question was the governmental nature of the powers, not their breadth. Municipal appointment of commissioners is a common feature of entities the AG had previously confirmed as political subdivisions (regional councils of government, planning agencies, transit districts, municipal electric energy cooperatives).

The AG also distinguished the prior tort-immunity superior court cases. Those decisions focused narrowly on immunity availability rather than applying the Supreme Court's broader political-subdivision standard. The AG noted that AG opinions with no real legal analysis do not get the same deference as well-reasoned opinions, citing Connecticut State Medical Soc'y v. Bd. of Examiners in Podiatry, 208 Conn. 709, 720 (1988).

Part 2: Public works status is case-by-case. Section 31-53 does not define "public works project." The Department of Labor's Guide to Prevailing Wage Laws relied on dictionary definitions ("construction projects, such as highways or dams financed by public funds and constructed by a government for the general public") and the Davis-Bacon Act regulations at 29 C.F.R. § 5.2(k), which include building or work "carried on directly by authority of or with funds of a Federal agency to serve the interests of the general public regardless of whether title is in a Federal agency."

The AG endorsed a multi-factor test drawing on L. Suzio Concrete Co. v. New Haven Tobacco, Inc., 28 Conn. App. 622 (1992), and Gerrity Co. v. Pace Constr., Inc., 1996 WL 663860 (Conn. Super. 1996) (affirmed per curiam 47 Conn. App. 926). Factors included:

• Public source of financing
• Extent of government involvement
• Public purpose or use serving the interests of the general public

No single factor was decisive. The AG noted that for certain housing project types (moderate rental under § 8-74, moderate cost under § 8-94, elderly housing under § 8-177a), the legislature had already expressly directed that prevailing wage applies. That express direction did not, in the AG's reading, imply that other housing authority projects could never be public works; it just removed the case-by-case analysis for those specific categories.

The AG concluded by acknowledging the practical and fiscal consequences for housing authority budgets and for construction workers, but expressly left policy resolution to the legislature.

What this means going forward (historical context only)

Since this opinion is more than 5 years old, treat it as historical context rather than current rules. At the time, the practical takeaways were:

• Housing authorities should expect that the Department of Labor would treat their construction and renovation projects as candidates for prevailing wage review.
• Contractors bidding housing authority work should factor in the possibility that the contract would carry prevailing wage requirements, especially for projects with substantial public financing or public-purpose elements.
• Authorities should evaluate each project individually against the multi-factor test.

Statutes, regulations, and case law in this area may have moved since 2013. The Davis-Bacon regulatory cross-reference cited in the opinion has since been updated by USDOL rulemakings. Anyone acting today should check current Connecticut DOL guidance and statutes before relying on the analysis here.

Common questions

Did this opinion make every housing authority job a prevailing wage job?

No. The AG explicitly rejected that approach. Whether a specific project triggers prevailing wage depends on a case-by-case look at financing, government involvement, and public purpose.

Are renovation and rehabilitation projects covered the same as new construction?

Yes, by statutory text. Section 31-53(a) lists "construction, remodeling, refinishing, refurbishing, rehabilitation, alteration or repair." All those activities are within scope if the project qualifies as a public works project.

What about a small in-house repair done by housing authority maintenance staff?

The prevailing wage statute is triggered by contracts for the listed activities. Direct in-house work performed by the authority's own employees is typically outside the scope, though that question was not the focus of this opinion.

Did the AG agree with the older AG opinions on housing authorities?

No. The AG declined to follow earlier opinions (e.g., 1979 to Deakin, 1982 to Lloyd, 1983 to Canale) that had treated housing authorities as not political subdivisions. The AG found those opinions thin in analysis and inconsistent with more recent decisions like AG Op. No. 2013-003 (CMEEC) and AG Op. No. 2008-08.

What if a housing authority and a private developer share a project?

The case-by-case analysis would look at the mix of public and private financing, government involvement, and public purpose. Public Authority financing of, say, an affordable-housing component within a mixed-income development could pull all or part of the project into prevailing wage coverage. The AG did not draw a precise line in the abstract.

Are housing authority police officers covered by prevailing wage rules?

No. Prevailing wage applies to construction-trade workers on public works contracts. Housing authority police officers under § 8-44b are not construction workers.

Citations

• Conn. Gen. Stat. § 31-53 (prevailing wage statute, including § 31-53(a) trigger language)
• Conn. Gen. Stat. §§ 8-38 through 8-58 (housing authority enabling statutes, including § 8-40 formation, § 8-41 commissioners, § 8-44 powers, § 8-44b police force, § 8-58 bonds)
• Conn. Gen. Stat. §§ 8-74, 8-94, 8-177a (specific housing project types expressly subject to prevailing wage)
• Conn. Gen. Stat. § 8-244(a) (Connecticut Housing Finance Authority as political subdivision by express statute)
• Conn. Gen. Stat. § 22a-261(a) (Connecticut Resources Recovery Authority as political subdivision)
• Conn. Gen. Stat. § 32-35(a) (Connecticut Innovations, Inc. as political subdivision)
• Conn. Gen. Stat. § 7-273bb(e) (municipal resource recovery authorities as political subdivisions)
• Conn. Gen. Stat. § 4-124k (regional councils of government enabling)
• Conn. Gen. Stat. § 8-31a (regional planning agencies)
• Conn. Gen. Stat. § 7-273d (transit districts)
• Conn. Gen. Stat. § 49-41b (public works retainage statute referenced in 1979 AG opinion)
• 29 C.F.R. § 5.2(k) (Davis-Bacon "public building or public work" definition)
• State ex rel. Maisano v. Mitchell, 155 Conn. 256 (1967) (political subdivision framework)
• Dugas v. Beauregard, 155 Conn. 573 (1967) (distinctive attributes)
• Mayfield v. Goshen Volunteer Fire Co., 301 Conn. 739 (2011) (cautious construction)
• Norwalk v. Housing Auth., 216 Conn. 112 (1990) (hybrid nature of housing authorities)
• Gordon v. Housing Auth., 208 Conn. 161 (1988) (housing authority autonomy from municipality)
• Cavanaugh v. Howell, 2008 WL 2068263 (Conn. Super.) (tort immunity context)
• Majette v. New London Housing Auth., 2005 WL 3112738 (Conn. Super.)
• Quinones v. New Britain Housing Auth., 1992 WL 329291 (Conn. Super.)
• Secondo v. Housing Auth., 2012 WL 1959294 (Conn. Super.) (ERISA context)
• Tuxis Ohr's Fuel, Inc. v. Administrator, 309 Conn. 412 (2013) (deference to time-tested agency construction)
• L. Suzio Concrete Co., Inc. v. New Haven Tobacco, Inc., 28 Conn. App. 622 (1992) (public works fact-intensive test)
• Gerrity Co., Inc. v. Pace Constr., Inc., 1996 WL 663860 (Conn. Super. 1996) (housing authority as public works)
• 120 West Fayette St., LLP v. Mayor, 413 Md. 309 (2010) (Maryland prevailing wage factors)
• CHRO v. Savin Rock Condominiums Ass'n, Inc., 273 Conn. 373 (2005) (federal analogues guide state interpretation)
• Connecticut State Medical Soc'y v. Bd. of Examiners in Podiatry, 208 Conn. 709 (1988) (AG opinion deference depends on analysis)
• Tine v. Zoning Bd. of Appeals, 308 Conn. 300 (2013) (statutory negative implication)
• Moore v. Lorain Metropolitan Housing Auth., 121 Ohio St. 3d 455 (2009) (housing authorities as political subdivisions)
• Doe v. Portland Housing Auth., 656 A.2d 1200 (Me. 1995) (housing authorities as political subdivisions)
• Austin v. Housing Auth., 143 Conn. 338 (1956) (housing authority autonomy from municipality)

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2013/opinion2013-10_prevailing_wage_statute-pdf.pdf?rev=aeb0cca674ad4624b6f480b918c28709

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

November 1, 2013

Honorable Sharon M. Palmer
Department of Labor
200 Folly Brook Blvd.
Wethersfield, CT 06189

Honorable Evonne M. Klein
Department of Housing
505 Hudson Street
Hartford, CT 06106

Dear Commissioners Palmer and Klein:

You have each separately requested a formal opinion as to the applicability of the state prevailing wage statute, Conn. Gen. Stat. § 31-53, to construction and renovation projects of local housing authorities. We understand that your respective departments have reached opposing conclusions on this question and that you have both requested an opinion to assist in resolving this important issue. Our analysis is based on a careful consideration of the statutes and developments in the case law and other relevant legal materials, including prior opinions of this Office. From that analysis, we conclude a court would likely rule that (1) housing authorities are political subdivisions of the state for purposes of the prevailing wage statute; and (2) the determination that a particular housing authority project is a public works project subject to the prevailing wage statute can only be made after a fact-based, case-by-case evaluation.

Background

Section 31-53 of the General Statutes provides: "Each contract for the construction, remodeling, refinishing, refurbishing, rehabilitation, alteration or repair of any public works project by the state or any of its agents, or by any political subdivision of the state or any of its agents, shall contain [a provision for prevailing wages]." Conn. Gen. Stat. § 31-53(a) (emphasis added). Thus, the application of the prevailing wage statutes depends, among other things, on whether the entity involved is the state, a political subdivision of the state, or an agent of either, and whether the project is a public works project. Neither "political subdivision of the state" nor "public works project" is defined.

Housing authorities are established pursuant to statute and are "public bod[ies] corporate and politic, exercising public powers . . . ." Conn. Gen. Stat. § 8-44(a). The governing bodies of a municipality, or of two or more municipalities in the case of a regional housing authority, may pass a resolution declaring the need for a housing authority. Id., § 8-40. Upon adoption of such a resolution, the chief executive officer of the municipality appoints five commissioners of the housing authority, who serve for five-year terms. Id., § 8-41(a); see Norwalk v. Housing Auth., 216 Conn. 112, 122 (1990) (describing "hybrid" character of housing authorities that are "created" by state statute but become operative only after adoption of municipal resolution). A housing authority's statutory powers include among other things: acquiring, leasing, constructing, repairing and operating housing projects; investigating housing conditions and means of improving such conditions; and promoting the creation and preservation of low- and moderate-income housing. Conn. Gen. Stat. § 8-44(a). Housing authorities may establish a police force, id., § 8-44b, and exercise the power of eminent domain. Id., § 8-40; see A.G. Op. No. 2011-003, 2011 WL 5617496 (Aug. 4, 2011). The bonds of a housing authority are "issued for an essential public and governmental purpose . . . ." Conn. Gen. Stat. § 8-58. The statutes governing housing authorities do not, however, expressly declare them to be political subdivisions of the state.

We have received separate opinion requests from the Departments of Labor and Housing, both accompanied by legal analyses of several issues related to whether the prevailing wage statute applies to housing authority projects. The Labor Commissioner, who is charged with the enforcement of the prevailing wage statute, takes the position that housing authorities, as "public bod[ies] corporate and politic," are political subdivisions of the state or agents of a political subdivision of the state. She further maintains that construction or renovation projects of housing authorities serve the public interest and therefore are public works projects to which the prevailing wage statute applies. The Commissioner of Housing takes the opposite view. First, the Commissioner of Housing relies on several superior court and Attorney General opinions that suggest that housing authorities are not political subdivisions of the state. Similarly, because of their statutory autonomy, she maintains that housing authorities are not agents of the state or municipalities. Finally, she contends that housing authority projects are distinct from public works projects because they are not exempt from property taxes and are not put to common use of the public.

Housing Authorities Are Political Subdivisions of the State Within the Meaning of the Prevailing Wage Statute

The prevailing wage statute applies to "any public works project by the state or any of its agents, or by any political subdivision of the state or any of its agents . . . ." Conn. Gen. Stat. § 31-53(a). 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. In some instances, the legislature has expressly designated an entity as a political subdivision of the state. See, e.g., Conn. Gen. Stat. § 22a-261(a) (Connecticut Resources Recovery Authority); Conn. Gen. Stat. § 32-35(a) (Connecticut Innovations, Inc.), § 8-244(a) (Connecticut Housing Finance Authority); Conn. Gen. Stat. § 7-273bb(e) (municipal resource recovery authorities). The failure of the legislature to designate expressly that an entity is a political subdivision, however, does not end the inquiry. In the absence of clear expression by the legislature, the courts have developed a framework for evaluating the question.

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 the 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).

Several superior court cases have held that housing authorities were not political subdivisions for purposes of governmental immunity from tort liability. See Cavanaugh v. Howell, 2008 WL 2068263 (Conn. Super. May 1, 2008); Majette v. New London Housing Auth., 2005 WL 3112738 (Conn. Super. Nov. 3, 2005); Quinones v. New Britain Housing Auth., 1992 WL 329291 (Conn. Super. Oct. 29, 1992); but see Secondo v. Housing Auth., 2012 WL 1959294 (Conn. Super. May 3, 2012) (holding that housing authority was a political subdivision for purposes of ERISA). In addition, several earlier Attorney General opinions have concluded that housing authorities were not political subdivisions for purposes of various statutes. A.G. Op. to Joseph E. Canale, 1983 WL 181007 (June 1, 1983) (for purposes of minority representation statute); A.G. Op. to Douglas S. Lloyd, 1982 WL 188517 (Dec. 27, 1982) (for purposes of statute prohibiting smoking in buildings of state or any political subdivision); A.G. Op. to David W. Deakin, 1979 WL 42282 (June 29, 1979) (for purposes of Conn. Gen. Stat. § 49-41b's requirements for payment of retainage on public works contracts); A.G. Op. to Renato E. Ricciuto, 1969 WL 14960 (Oct. 30, 1969) (for purposes of unemployment compensation benefits). However, in light of more recent developments in the case law and the other considerations discussed, we believe a court applying the appropriate standard would now likely conclude that housing authorities are political subdivisions for purposes of the prevailing wage statute.

First, the court decisions did not apply the standard for political subdivisions as articulated by our Supreme Court. For example, in Quinones, on which the later superior court decisions relied, see Cavanaugh, 2008 WL 2068263, at 2; Majette, 2005 WL 3112738, at 2; the court narrowly focused on the availability of governmental immunity. In concluding that there was evidence that the legislature did not intend for housing authorities to have the same governmental immunity as afforded "municipalities or other 'political subdivisions' of the state," the court in Quinones relied on statutory provisions that allowed housing authorities to sue and be sued and to obtain insurance and that provided for the manner for bringing damages actions against housing authorities. Quinones, 1992 WL 329291, at *2. It stated that "[t]his view is buttressed further by the failure of the Legislature to expressly designate municipal housing authorities as political subdivisions . . . ." Id. Neither it nor the subsequent court decisions, however, evaluated whether housing authorities nonetheless satisfied the standard for political subdivisions in the absence of an expressed statutory designation.

By contrast, the prior Attorney General opinions purported to do just that. For example, in a 1979 opinion addressing whether Conn. Gen. Stat. § 49-41b's requirements for withholding or payment of retainage on public works contracts applied to housing authorities, the opinion set forth the standards for political subdivisions under Maisano and Dugas. It concluded that a housing authority "does not possess one of the characteristics of a political subdivision, to wit, authority for subordinate self-government." A.G. Op. to David W. Deakin, 1979 WL 42282, at *3 (June 29, 1979). The only reason it gave for this conclusion, however, was that a housing authority "has only those powers enumerated in [Conn. Gen. Stat. §] 8-44 . . . ." Id.; see also A.G. Op. to Douglas S. Lloyd, 1982 WL 188517 (Dec. 27, 1982) (offering the identical analysis for purposes of statute prohibiting smoking in buildings of state or any political subdivision). The opinion does not explain why the breadth of an entity's powers, rather than the governmental nature of those powers, is what should control.

The analysis and conclusions reached in these opinions is inconsistent with subsequent Attorney General opinions addressing political subdivisions. These more recent Attorney General opinions have determined that entities were political subdivisions where, as here, the entity's statutory powers were circumscribed to a specific subject matter and the entity's board members or commissioners were appointed by municipal officials. 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. Op. No. 2000-13, 2000 WL 777822 (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. Op. No. 2008-008, 2008 WL 1959488 (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.

Most recently, this Office concluded that a municipal electric energy cooperative was a political subdivision for the purposes of record retention requirements of Conn. Gen. Stat. § 11-8. A.G. Op. No. 2013-003, 2013 WL 4680706 (June 7, 2013). Like housing authorities, municipal electric energy cooperatives are statutorily authorized entities created through municipal action and are governed by a body appointed by municipal officials. Id. at *3-4. Moreover, they perform a governmental function, albeit one that is confined to a particular subject matter — providing for electric generation and distribution facilities in their respective municipalities. Id.

It is difficult, if not impossible, to square these opinions, reflecting the most recent application of our Supreme Court's construction of the term "political subdivision," with the curt analysis undertaken in the earlier opinions addressing housing authorities. We therefore do not believe that a court would find these earlier Attorney General opinions persuasive. See Connecticut State Medical Soc'y v. Connecticut Bd. of Examiners in Podiatry, 208 Conn. 709, 720 (1988) (although Attorney General opinions are ordinarily to be regarded as highly persuasive, an opinion with no legal analysis is not entitled to the same deference).

Rather, applying the principles from the Supreme Court's cases and the more recent Attorney General opinions, we believe a court would conclude that housing authorities are political subdivisions of the state for the purposes of the prevailing wage statute. First, they exist for the purpose of discharging a function of local government. The legislature has determined that the provision of safe and sanitary housing for low- and moderate-income persons is a "matter of necessity in the public interest . . . ." Conn. Gen. Stat. § 8-38. Housing authorities exercise "public powers," id., § 8-44(a), including operating housing projects, making efforts to improve housing conditions, creating and preserving low- and moderate-income housing, id., establishing a police force, id., § 8-44b, and exercising the power of eminent domain, among other things. Id., § 8-40; see A.G. Op. No. 2011-003, 2011 WL 5617496 (Aug. 4, 2011). These are governmental powers of the sort that are typically delegated to political subdivisions of a state, and are "functions of the State which by long usage and the inherent necessities of government have always been regarded as public." Maisano, 155 Conn. at 263.

Second, they have a prescribed area — the municipality (or municipalities in the case of regional housing authorities) that have established them. See A.G. Op. No. 2012-005, 2012 WL 2119444 (June 5, 2012) (concluding that a housing authority may only act within geographical boundaries of the particular municipality forming it).

Third, they possess the authority for subordinate self-government. It is of no moment, contrary to what was suggested in the earlier Attorney General opinions, that their authority is limited to housing. The case law imposes no requirement that a political subdivision's authority be broad, rather than circumscribed to a specific area of public powers. Instead, what is essential is that the entity is exercising public powers through self-government. In exercising their housing-related powers, housing authorities are self-governing, subordinate to the State pursuant to statute. The commissioners of a housing authority exercise their statutory authority autonomously. Indeed, the self-governing character of housing authorities is a principal reason why housing authorities are generally not treated as an agency or agent of the municipalities that have established them. See Gordon v. Housing Auth., 208 Conn. 161, 185-86 (1988).

That the legislature chose to have municipal officials appoint the commissioners that make up a housing authority does not mean they lack self-governance. Municipal appointment is a common characteristic of many entities that have been determined to be political subdivisions, including regional councils of governments, A.G. Op. No. 2008-008, 2008 WL 1959488 (Apr. 30, 2008); A.G. Op. No. 2000-13, 2000 WL 777822 (Mar. 24, 2000); Conn. Gen. Stat. § 4-124k; regional planning agencies, A.G. Op. No. 2008-008, 2008 WL 1959488 (Apr. 30, 2008); Conn. Gen. Stat. § 8-31a; transit districts, A.G. Op. No. 2008-008, 2008 WL 1959488 (Apr. 30, 2008); Conn. Gen. Stat. § 7-273d; and municipal electric energy cooperatives, A.G. Op. No. 2013-003, 2013 WL 4680706 (June 7, 2013); Conn. Gen. Stat. § 7-233c(a). As the Supreme Court expressed in Maisano, the essential requirement for a political subdivision is that it is a "division of the State made by proper authorities thereof, acting within their constitutional powers . . . ." Maisano, 155 Conn. at 263. There is no question that housing authorities, established pursuant to Conn. Gen. Stat. § 8-44(a), qualify as such.

Given these attributes — a statutorily authorized entity created by municipal entities and governed by a body to carry out a necessary governmental function — we conclude that housing authorities are among the "core set of entities — cities, towns and other units of local government" that our Supreme Court would hold to "plainly fall within the meaning of political subdivision." Mayfield, 301 Conn. at 747. 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 housing authority, is a "unit of local government." Id. at 747-48. Like regional councils of government, regional planning agencies, transit districts and municipal electric energy cooperatives that this Office has determined to be political subdivisions, housing authorities are created through statutorily authorized municipal action. They perform a quintessential public purpose and governmental function — providing affordable and adequate housing — typical of local units of government. They satisfy the Supreme Court's standards for political subdivisions articulated in Maisano and Dugas.

Determining Whether a Housing Authority Project Is a "Public Works" Within the Meaning of the Prevailing Wage Statute Requires a Project-by-Project Analysis.

The prevailing wage statute applies to "public works projects." What constitutes a public works project is not defined by the statute, but rather requires a fact-based, project-by-project analysis that cannot be answered in the abstract.

Recognizing that the statute does not define "public works projects," the Department of Labor's Guide to Prevailing Wage Laws in Connecticut indicates that it "has historically relied upon the accepted dictionary definition of public works as 'Construction projects, such as highways or dams financed by public funds and constructed by a government for the general public.'" DOL, Guide to Prevailing Wage Laws in Connecticut, at 17 (rev. 2009); see Nyenhuis v. Metropolitan Dist. Comm'n, 300 Conn. 708, 720 (2011) (in absence of statutory definition, courts will use dictionary definition for common meaning of term). It further relies on the definition of public works under the regulations for the Davis-Bacon Act, the federal corollary to the state prevailing wage statute, which provides:

The term public building or public work includes building or work, the construction, prosecution, completion, or repair of which . . . is carried on directly by authority of or with funds of a Federal agency to serve the interests of the general public regardless of whether title is in a Federal agency.

29 C.F.R. § 5.2(k); see CHRO v. Savin Rock Condominiums Ass'n, Inc., 273 Conn. 373, 386 (2005) (related federal law may be guide to interpreting state statute). The Department concludes that the two definitions are consistent and reflect that a public works project is one involving "the construction, rehabilitation or repair of a project which serves the interest of the general public." DOL, Guide to Prevailing Wage Laws in Connecticut, at 17. Courts will give deference to the "time-tested" construction of a statute by the agency charged with its enforcement. Tuxis Ohr's Fuel, Inc. v. Administrator, 309 Conn. 412, 422 (2013); Dept. of Public Safety v. State Bd. of Labor Relations, 296 Conn. 594, 599 (2010).

Applying this definition of public works, however, is a fact-intensive, case-by-case determination. See L. Suzio Concrete Co., Inc. v. New Haven Tobacco, Inc., 28 Conn. App. 622, 629 (1992) (construing "public works" under Conn. Gen. Stat. § 49-41 pertaining to performance bonds for such projects); Gerrity Co., Inc. v. Pace Constr., Inc., 1996 WL 663860, at 3 (Conn. Super. 1996) (concluding that a housing authority project was a public works project under Conn. Gen. Stat. § 49-41), aff'd per curiam, 47 Conn. App. 926 (1998). Drawing from this definition, the factors that should be considered, no single one of which is determinative, include the public source of financing of the project, the extent of government involvement in the project, and the public purpose or use of the project that serves the interests of the general public. See L. Suzio Concrete, 28 Conn. App. at 629; Gerrity, 1996 WL 663860, at 3; 120 West Fayette St., LLP v. Mayor, 413 Md. 309, 336-40, 992 A.2d 359 (2010) (applying factors for determining public works project under Maryland prevailing wage statute). Whether a particular housing authority project constitutes a public works project within the meaning of the prevailing wage statute therefore requires an individualized evaluation of these specific facts of that project in light of these factors. In the first instance, that is an analysis for the Department of Labor to conduct as the agency charged with enforcement of the statute.

We acknowledge that the application of the prevailing wage statute to housing authority projects may have significant practical and fiscal consequences. Indeed, this issue exists at the intersection of two important public policies. First, the wage level for these projects obviously impacts upon the costs of projects undertaken by local housing authorities. On the other hand, providing a fair wage for employees impacts upon the standard of living employees enjoy in our state as well as the quality of labor a particular project will attract. We are not in a position to accurately assess or balance these competing impacts. Moreover, the practical policy implications of the resolution of the questions we have been asked must be left to the legislature to address. The purpose of this opinion is to address how a court would most likely decide the meaning and application of the governing statutory provisions in light of relevant precedent and case law.

On the basis of that analysis, we conclude (1) housing authorities are political subdivisions of the state for purposes of the prevailing wage statute; and (2) the determination that a particular housing authority project is a public works project subject to the prevailing wage statute can only be made after a fact-based, case-by-case evaluation.

We trust this is responsive to your queries.

Sincerely yours,

GEORGE JEPSEN
ATTORNEY GENERAL