Could Connecticut's legislature take the State Bond Commission away from the Governor and run it as a legislative committee?

Plain-English summary

Governor Ned Lamont asked AG William Tong to weigh in on Senate Bill 1134, a 2019 proposal that would have done two things at once: yank the State Bond Commission out of the executive branch and rebuild it as a legislative committee, and shift the Office of Policy and Management's bonding staff to the legislative Office of Fiscal Analysis. Under the bill, the commission would have consisted entirely of legislators (the Senate president pro tem, the House speaker, the four party leaders, and the chairs and ranking members of the finance committee), with the Senate president and House speaker as cochairs jointly setting the agenda.

Tong concluded a court would almost certainly hold the bill unconstitutional, on two independent grounds. First, separation of powers: the day-to-day administration of bond authorization is an executive function (executing the laws), and the bill would have transferred that function entirely to the legislature, going far beyond the kind of overlapping membership the Connecticut Supreme Court has historically tolerated. Second, presentment: if the legislature wants to direct specific bonding, it has to do so by passing a bill through both chambers and presenting it to the Governor; it cannot delegate that power to a small group of its own members and then bypass the Governor's veto.

The opinion is unusually direct. AG offices in Connecticut historically duck constitutional questions about pending legislation, citing the duty to defend statutes once enacted; Tong walked through that custom, distinguished it on the ground that the bill was "unquestionably unconstitutional on its face," and gave a clear forecast.

Currency note

This opinion was issued in 2019. 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 the State Bond Commission?
A: A 10-member body created by Conn. Gen. Stat. § 3-20 that authorizes the actual issuance of state general obligation bonds and credit revenue bonds. The legislature passes a bond act listing eligible purposes; the commission then decides which specific projects get funded by adopting authorizing resolutions. Once it does, those bond proceeds count as appropriations.

Q: Why was the commission's structure constitutionally important? A: Because the commission decides which projects actually get the cash. Whoever controls the commission controls a multi-billion-dollar flow of state spending. Connecticut had long given the Governor structural control by including six executive officers and four legislators, with tradition putting the Governor in charge of the agenda. SB 1134 would have inverted that, putting the legislature in unilateral control.

Q: What are the Geisler factors?
A: A six-factor test from State v. Geisler, 222 Conn. 672 (1992), that Connecticut courts use when interpreting the state constitution: text, Connecticut precedent, federal precedent, sister-state precedent, history, and contemporary policy. The factors can overlap and not all apply in every case.

Q: Why is bond authorization an "executive function"? A: Because executing the laws is the executive's main job under Conn. Const. art. IV, § 12. Once the legislature has authorized bonds for a class of projects, deciding which specific projects qualify and when to issue the bonds is implementation rather than law-making. The AG cited Bowsher v. Synar and Springer v. Philippine Islands for the parallel federal principle.

Q: What is the presentment clause and why does it matter here? A: Conn. Const. art. IV, § 15 requires every bill that has passed both chambers to be presented to the Governor for signature or veto. The bill let a subset of legislators direct billions in spending without going through that process. The AG analogized to Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise (501 U.S. 252 (1991)), where the U.S. Supreme Court struck down a similar congressional review board.

Q: Why did the AG point to North Dakota and other state cases? A: Because Connecticut's separation-of-powers doctrine is more flexible than the federal version (legislators can sit on executive boards without violating Conn. Const. art. II, per Seymour v. Elections Enforcement Comm'n). The persuasive value of McInnish v. Riley (Alabama), Burgum (North Dakota), and State ex rel. Schneider (Kansas) is that they show a wholesale transfer of executive function to a legislative subgroup goes too far even under flexible state doctrines.

Q: Did the AG say the legislature could never direct specific bonding? A: No. The legislature can direct specific bonds for specific projects through ordinary legislation, the way it did before the Bond Commission existed (the AG cited examples from 1936, 1941, and 1951 special acts). What it cannot do is delegate that power to a self-selected legislative subgroup and skip presentment.

Background and statutory framework

The Bond Commission has been the gatekeeper for Connecticut general obligation bond financing since 1972. Conn. Gen. Stat. § 3-20(c) sets the membership: the Governor, Treasurer, Comptroller, Attorney General, Secretary of OPM, Commissioner of Administrative Services, and four legislators (the chairs and ranking members of the finance, revenue, and bonding committees). Subsection (g)(1) lets the commission, by majority vote, authorize bonds for any project the legislature has identified as eligible. Subsection (g)(3) deems the proceeds an appropriation.

By design, the structure puts the executive branch firmly in the driver's seat: six of ten members are executive officers, and the Governor traditionally controls the agenda. Critics of that structure (including legislators on both sides of the aisle, depending on who held the governor's office at the time) periodically tried to rebalance it. SB 1134 was the most aggressive of those efforts, and Tong's opinion sketched a blueprint for why a court would not let it stand.

The constitutional architecture Tong worked from has three load-bearing pieces. Article II is the express separation-of-powers clause, which the Massameno and Seymour cases interpret with some flexibility. Article IV, § 12 makes execution of the laws the Governor's duty. Article IV, § 15 is the presentment clause. The opinion threads those together with the long line of Geisler-factor decisions to reach a forecast that goes beyond a typical "we have concerns" AG signal.

Citations and references

Statutes and constitutional provisions:

• Conn. Gen. Stat. § 3-20 (State Bond Commission)
• Senate Bill 1134 (2019)
• Conn. Const. art. II (separation of powers)
• Conn. Const. art. IV, § 12 (Governor's duty to execute laws)
• Conn. Const. art. IV, § 15 (presentment)

Connecticut constitutional-interpretation framework:

• State v. Geisler, 222 Conn. 672 (1992)
• Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008)
• Feehan v. Marcone, 331 Conn. 436 (2019)

Connecticut separation-of-powers cases:

• Seymour v. Elections Enforcement Comm'n, 255 Conn. 78 (2000)
• Massameno v. Statewide Grievance Committee, 234 Conn. 539 (1995)
• Univ. of Connecticut Chapter AAUP v. Governor, 200 Conn. 386 (1986)

Federal and sister-state cases:

• Bowsher v. Synar, 478 U.S. 714 (1986)
• Buckley v. Valeo, 424 U.S. 1 (1976)
• Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991)
• McInnish v. Riley, 925 So.2d 174 (Ala. 2005)
• North Dakota Legislative Assembly v. Burgum, 916 N.W.2d 83 (N.D. 2018)

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2019/2019-02_gov_lamont.pdf?rev=044ef0eee4454f209090fd446b609eea

Original opinion text

55 E lm Street
P.O . Box 120
Hartford, CT 06 14 1-0 120

WILLIAM TONG
ATTO RNEY GENERAL

Office of the Attorney General

(860) 808-5319

State of Connecticut
Mayl7,2019

BY EMAIL AND HAND DELIVERY
The Honorable Ned Lamont
Governor
State Capitol
210 Capitol Avenue
Haitford, CT 06106
Dear Governor Lamont:
You have requested a formal opinion on the constitutionality of Senate Bill 1134, captioned An Act Restructuring the State Bond Commission and Establishing a Dedicated Bonding Section within the Legislative Office of Fiscal Analysis (Proposed Bill). The Proposed Bill would transfer the State Bond Commission (Bond Commission) from the executive to the legislative branch, eliminate all executive officers on the Bond Commission and replace them with legislative members, and move ce1tain staff from the Office of Policy and Management to the legislative Office of Fiscal Analysis. Specifically, you ask whether (1) the Proposed Bill would empower the legislative branch to perform executive functions in violation of the separation of powers, and (2) resolutions adopted by the reconstituted Bond Commission would violate the presentment clause of the state constitution, which requires legislation to be adopted by both chambers and presented to the Governor for his approval or veto. After careful consideration, we conclude that it is highly likely that a Connecticut comt, if presented with the issue, would determine that the provisions of the Proposed Bill violate the separation of powers of A1ticle II and the presentment clause of A1ticle IV,§ 15 of the Connecticut Constitution. Background

Section 3-20 of the General Statutes established the Bond Commission, consisting of the Governor, Treasurer, Comptroller, Attorney General, Secretary of the Office of Policy and Management (OPM), Commissioner of Administrative Services, and the cochairpersons and ranking minority members of the joint

An Affirmative Action/Equal Opportunity Employer

Hon; Ned Lamont
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standing committee of the General Assembly having cognizance over finance, The Bond revenue and bonding matters; 1 Conn. Gen. Stat. § 3-20(c). Commission's principal authority is to determine whether and for what purposes and projects bonds should be issued. When the General Assembly has enacted a bond act empowering the Bond Commission to authorize bonds for any project or purpose, the Bond Commission may by majority vote adopt a resolution authorizing the issuance of bonds upon finding that such authorization is in the state's best interests. Conn. Gen. Stat. § 3-20(g)(l). Upon adopting such a resolution, the bond proceeds are "deemed to be an appropriation" for such project or purpose. Conn. Gen. Stat. § 3-20(g)(3). The authorizing resolution may include the terms and conditions of the bonds. Id. Traditionally, the Governor sets the agenda for the Bond Commission when requests for funding are considered. The Proposed Bill would eliminate all the executive branch members. Instead, the Bond Commission would include the president pro tempore of the Senate, the speaker of the House of Representatives, the majority and minority leaders of both the House and Senate, and the cochairpersons and ranking minority members of the joint standing committee of the General Assembly having cognizance of finance, revenue and bonding matters. Proposed Bill,
§ 1(c)(1 ). The Senate president pro tempore and the speaker of the House would serve as cochairpersons of the Bond Commission and would jointly prepare the agenda for commission meetings. Id., § I (c)(2). Under the Proposed Bill, the Bond Commission would be expressly part of the legislative branch. Id., § I (c)(1 ). A new, separate bonding section would be established as part of the legislative Office of Fiscal Analysis, and would have transferred to it the current staff members in the Budget and Financial Management division of OPM having responsibility for bonding matters. Id., § 2. Requests for projects or bonding allocations to be included on the Bond Commission agenda would be made by the Secretary of OPM for the executive branch and the chief court administrator for the judicial branch. Id., § l (c)(3).

1

The executive members may designate a deputy to attend meetings and act on their behalf, and the legislative members may designate another member of the joint standing committee to do so. Conn. Gen. Stat. § 3-20(c).

Hon. Ned Lamont
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Discussion

You question whether the Proposed Bill is consistent with the state constitution. Enacted legislation ordinarily carries a strong presumption of constitutionality and will be struck down only if its unconstitutionality is proved beyond a reasonable doubt. Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 405 (2015). Our task is to offer our best forecast as to how a court, if faced with the question, would evaluate the constitutionality of the Proposed Bill.2 The Connecticut Supreme Court has directed that when construing the Connecticut Constitution, six factors, commonly called the Geisler factors, should be considered when applicable. They are "(1) the text of the operative constitutional provision; (2) holdings and dicta of [the Supreme] and the Appellate Court; (3) persuasive and relevant federal precedent; (4) persuasive sister state decisions; (5) the history of the operative constitutional provision, including the historical constitutional setting and the debates of the framers; and (6) contemporary economic and sociological considerations, including relevant public policies." Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 157 (2008) (citing State v. Geisler, 222 Conn. 672, 685 (1992)); accord Feehan v. Marcone, 331 Conn. 436, 449-50 (2019). These factors may be "inextricably interwoven," and not every such factor is relevant in all cases. Bysiewicz v. Dinardo, 298 Conn. 748, 790 (2010). Separation of Powers

The Connecticut Constitution includes an expressed separation of powers provision, which states: "The powers of government shall be divided into three distinct departments, and each of them confided to separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another." Conn. Const. art. II. Our Supreme Court has consistently held that:

2

Because of the presumption of constitutionality and the Attorney General's duty to defend the constitutionality of state laws, this Office historically has been hesitant to offer opinions on the constitutionality of legislation except where the statute is "unquestionably unconstitutional on its face." See, e.g., A.G. Op. No. 2004-006, 2004 WL 1110332, at *5 (May 17, 2004) (internal quotation marks omitted).

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in deciding whether one branch's actions violate the constitutional mandate of the separation of powers doctrine, the comi will consider if the actions constitute: (1) an assumption of power that lies exclusively under the control of another branch; or (2) a significant interference with the orderly conduct of the essential functions of another branch. Seymour v. Elections Enforcement Comm 'n, 255 Conn. 78, I 07 (2000) (internal quotation marks omitted). As it has explained:

The separation of powers doctrine serves a dual
function: it limits the exercise of power within each branch, yet ensures the independent exercise of that power. Nevertheless, it cannot be rigidly applied always to render mutually exclusive the roles of each branch of government. As we have recognized, "the great functions of government are not divided in any such way that all acts of the nature of the function of one department can never be exercised by another depaiiment; such a division is impracticable, and if carried out would result in the paralysis of government. Executive, legislative and judicial powers, of necessity overlap each other, and cover many acts which are in their nature common to more than one department." Massameno v. Statewide Grievance Committee, 234 Conn. 539, 552 (1995) (quoting In re Clark, 65 Conn. 17, 38 (1894)).

Thus, the Connecticut separation of powers doctrine provides for a degree of flexibility in the exercise of governmental functions. See Univ. of Connecticut Chapter AAUP v. Governor, 200 Conn. 386, 396-97 (1986). For example, the Court has held that legislative appointments to an executive branch board or commission do not violate the separation of powers. Seymour, 255 Conn. at 108. However, that flexibility does not permit one branch either to usurp an exclusive function of another or to interfere significantly in another branch's essential functions. Id. at 107.

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The exercise of bonding authority - including the decision to issue bonds and the decision as to what projects or purposes bond proceeds should be dedicated can be fairly characterized as relating to both the executive and legislative functions. After all, "[t]he legislative power necessarily encompasses the 'power to appropriate funds to finance the operation of the state and its programs."' Univ. of Connecticut Chapter AAUP, 200 Conn. at 395 (quoting Eielson v. Parker, 179 Conn. 552, 560 (1980)). Unquestionably, the legislature has the constitutional power to authorize the issuance of bonds for the financing of state purposes and programs. At the same time, if the legislature, as it has in enacting § 3-20, delegates such authority to an executive officer or commission, the exercise of that delegated authority is an executive function. In exercising this authority by making decisions to authorize bonds for specific projects or purposes, the executive is fulfilling the constitutional duty to ensure that the laws are faithfully executed. Id. at 397; Conn. Const., art. IV, § 12. Although the Bond Commission is not performing an exclusive executive function, the implementation of bond legislation is an executive function. The execution of the laws - here, the administration of bonding authority - is the principal function of the executive. See Bowsher v. Synar, 478 U.S. 714, 726 (1986); Springer v. Government of Philippine Islands, 277 U.S. 189 (1928). As currently structured, having legislative members on the Bond Commission does not offend the separation of powers. See Seymour, 225 Conn. at 108. However, the Proposed Bill goes well beyond this sort of permissible sharing of authority. The Proposed Bill would expressly transfer the Bond Commission, presently an executive branch entity with a minority of legislative members, to the legislative branch and would compose the entire commission of legislative members. This does raise several constitutional concerns. Persuasive guidance can be found in the case law from the federal courts and other states. 3

3

The Connecticut separation of powers doctrine has been characterized as more flexible than, for example, the doctrine as applied under the U.S. Constitution. The best example of that difference is in the case of legislative appointments to executive boards or comm1ss1ons. Compare Buckley v. Valeo, 424 U.S. 1, 127 (1976) (holding that legislative appointment of members of Federal Elections Commission violated separations of power) with Seymour, 255 Conn. at 105-06 (upholding legislative appointments under more flexible analysis in light of lack of appointments clause in state constitution). Given the fundamental nature of the separation of powers defects in the Proposed Bill, we do not in this instance discern a principled basis to distinguish the federal court and other state precedents discussed below.

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Several courts have found separation of powers violations when the legislature has transferred to a legislative board or entity the day-to-day administration of various government programs. Mcinnish v. Riley, 925 So.2d 174, 188 (Ala. 2005) (legislative committee authorized to approve or deny grants violated separation of powers); Opinion of the Justices, 380 A.2d 109, 115-16 (Del. 1977) (transfer of maintenance, security and communications administration from executive agency to legislative council violated separation of powers); State ex rel. Schneider v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976) (state finance council consisting of nine legislators and governor with authority over executive agency having administrative and fiscal responsibilities violated separation of powers). The comis' reasoning in each of these cases was that the legislature, through a legislative entity comprised of members of the legislature, was in effect executing the laws, not legislating. Mclnnish, 925 So.2d at 188; Opinion of the Justices, 380 A.2d at 116; State ex rel. Schneider, 547 P.2d at 797-98; see also Bowsher v. Synar, 478 U.S. 714, 734 (1986) (legislative officer having ultimate authority over the determination of budget cuts unconstitutionally intruded on the executive function). This is precisely what the Proposed Bill would do. It would take over from an executive agency the complete authority to implement bond authorization legislation. Although the Connecticut Constitution allows for flexibility in the exercise of the separate functions of government, the Proposed Bill would go too far. It would completely oust the executive branch from its role in executing the laws related to bond authorizations. Because the execution of the laws is the principle function of the executive branch, this would constitute a "significant interference with the orderly conduct of the essential functions of another branch." Seymour, 255 Conn. at 107. A Connecticut comi would therefore likely conclude that the legislature's delegation to a legislative commission of the authority to execute and implement bonding legislation in such a fashion would be an impermissible intrusion on the executive. 4 4

We note that this Office opined in 2002 that a statute that required the Commissioner of Social Services to submit applications for waivers of federal assistance programs to ce1iain legislative committees for approval did not violate the Connecticut separation of powers doctrine. A.G. Op. No. 2002-021, 2002 WL 1486265 (June 28, 2002). The opinion viewed the requirement as sufficiently connected to the legislature's appropriations authority to not constitute a significant interference with the executive branch. For the reasons we discuss, the Proposed Bill, by contrast, would involve a far more fundamental and extensive intrusion.

Hon. Ned Lamont
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Presentment
The scheme the Proposed Bill contemplates, however, suffers from an additional, even more fundamental constitutional flaw. If the legislature wants to exercise the power to authorize and direct specific bonding, it may do so by enacting legislation - to wit, by passage of a bill by both houses and presentment of the bill to the Governor as the constitution requires. Conn. Const., art. IV, § 15 ("Each bill which shall have passed both houses of the general assembly shall be presented to the Governor."). Bypassing this constitutionally mandated process, the Proposed Bill would authorize a small group of legislators to act, independently exercising delegated authority. Again, precedents from other jurisdictions offer guidance. In Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., the U.S. Supreme Court struck down as a separation of powers violation the creation of a commission composed of nine members of Congress with authority to review local decisions relating to the two Washington area airports. 501 U.S. 252 (1991). To the extent that this review authority was executive in nature, the Court concluded that Congress could not confer such executive power on itself. To the extent that it was an exercise of legislative power, the commission could not exercise the authority because it violated the bicameralism and presentment requirements of the Federal Constitution. Id. at

276. Plainly, the Proposed Bill has the same problem.

Similarly, in North Dakota Legislative Assembly v. Burgum, the N01ih Dakota Supreme Court recently held unconstitutional the legislature's creation of a "budget section," comprised of a subset of legislative members, to approve the transfer of certain funds appropriated for expenditure by the state water comm1ss10n. 916 N.W.2d 83 (N.D. 2018). The court concluded that this approval authority intruded impermissibly on the executive. More importantly, this review "bypasses the mandatory legislative process." Id. at 106. To exercise its power, the legislature ordinarily must act as a legislature as the constitution mandates. Id. at 105-06; see also State ex rel. McLeod v. Mclnnis, 278 S.C. 307, 295 S.E.2d 633 (1982) (legislative committee having broad authority over control of state expenditures without enacting new legislation violated separation of powers). The legislature undoubtedly can enact legislation that authorizes specific bonds for specific projects, which the Governor would then have to sign, or

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choose not to sign. Indeed, before the Bond Commission was created, the legislature often acted in such a fashion. See, e.g., 26 Conn. Special Acts No. 216 (1951) (authorizing bonds for institutional buildings); 23 Conn. Special Acts No. 213 (1941) (authorizing bonds for University of Connecticut dormitory); 22 Conn. Special Acts No. 3 (1936) (authorizing bonds for state college buildings). But what it cannot do is delegate to a subgroup of itself its legislative powers or exercise those powers without presentment to the Governor. Doing so, as the Proposed Bill would, violates the presentment clause of Article IV, § 15. In light of the governing constitutional text, existing Connecticut precedent and the persuasive decisions of other federal and state courts, it is highly likely that a Connecticut court, if presented with the issue, would conclude that the provisions of the Proposed Bill violates the Connecticut Constitution.