When a Connecticut judge applies for disability retirement, does the Judicial Review Council have to consider whether reasonable accommodations would let the judge keep working, and if so, can the Council order the Judicial Branch to provide them?

Plain-English summary

The chair of the Judicial Review Council, Mitchell Harris, asked AG William Tong how to handle a sitting judge's application for disability retirement. The Council's own regulation (RCSA § 51-51k-10(j)) tells it to decide both whether the judge is permanently incapacitated and whether a reasonable accommodation would let the judge perform the essential functions of the office. The statute itself (Conn. Gen. Stat. § 51-49) says nothing about accommodations. Harris wanted to know how to fit those pieces together with the ADA and CFEPA frameworks the Judicial Branch had to work within as the judge's employer.

Tong drew a careful line. The Council must include the accommodation question in its incapacity analysis, because a judge whose limitations can be addressed by a reasonable accommodation is not "permanently incapacitated" within the meaning of § 51-49. The Council can investigate, can require the judge to share medical records and submit to an independent medical exam, and can call witnesses at a closed hearing, including officials from the Judicial Branch. But the Council does not run the ADA "interactive process," cannot decide what accommodation should be offered, and cannot order the Judicial Branch to provide one. That is the Chief Court Administrator's job, under Conn. Gen. Stat. § 51-5a's general authority to assign, reassign, and modify the assignments of Superior Court judges.

The opinion is also a clear illustration of two administrative-law canons: an agency has only the powers the legislature gives it, and a regulation that fills in details consistent with the statute carries the force of law. The Council's regulation supplements § 51-49 by clarifying what "permanently incapacitated" means, but it cannot stretch to confer powers (such as ordering accommodations) the legislature never granted.

Currency note

This opinion was issued in 2020. 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: Who is the Judicial Review Council?
A: A 12-member body within the Office of Governmental Accountability that handles judicial misconduct and disability matters. Members are appointed by the Governor and approved by the General Assembly: three judges, three attorneys, and six others. Its powers come from Conn. Gen. Stat. §§ 51-51k to 51-51u, plus the disability-retirement statute, § 51-49.

Q: What does "permanently incapacitated" mean for a judge?
A: The statute says it requires the judge to be "unable to fulfill adequately the duties of his office." The Council's regulation refines that: a judge is not considered permanently incapacitated if a reasonable accommodation would let the judge perform all of the essential functions of the office.

Q: What is a "reasonable accommodation" in this context?
A: The opinion borrows the ADA / CFEPA definition: modifications or adjustments to the work environment, or to how the job is customarily performed, that enable a person with a disability to perform the essential functions. For a judge, that might be schedule modifications, assignment changes, or technology assistance. The Council's regulation does not define the term, so the AG used the federal definition as persuasive authority.

Q: Can the Council demand the judge's medical records?
A: Yes. RCSA § 51-51k-10(d) requires a judge applying for disability retirement to give the Council access to pertinent medical records and to submit to an independent medical examination if requested. That is a built-in feature of applying for retirement; the judge cannot withhold the records and still get the disability pension.

Q: Why can't the Council order an accommodation if it finds one is feasible?
A: Because the legislature did not grant that power. Under Pereira v. State Board of Education, 304 Conn. 1 (2012), an agency has only the authority the legislature gives it. Section 51-49 lets the Council decide whether to retire the judge with disability pay. It does not let the Council redesign the judge's job. The Chief Court Administrator's express authority to assign, reassign, and modify judges' assignments under § 51-5a sits alongside this gap.

Q: How does this interact with the ADA?
A: The ADA's interactive-process duty falls on the employer, which here is the Judicial Branch. The judge requests an accommodation; the Judicial Branch and the judge negotiate; if no reasonable accommodation is possible, the disability retirement track resumes. The Council does not negotiate accommodations; it evaluates whether one exists.

Q: What if the Judicial Branch and the Council disagree about whether an accommodation is feasible?
A: The Council still gets to decide whether to retire the judge with disability pay (§ 51-49(b)). Its determination is informed by evidence from the Judicial Branch and the judge, but the final retirement decision is the Council's. What the Council cannot do is override the Judicial Branch's separate decision about how to assign the judge if the judge stays on the bench.

Background and statutory framework

Connecticut's judicial-discipline regime sits in the Office of Governmental Accountability, separate from the Judicial Branch itself, by design. Conn. Gen. Stat. § 51-51k creates the 12-member Judicial Review Council; §§ 51-51l through 51-51u walk through its general powers; § 51-49 is the specific disability-retirement provision. The Council's regulations at RCSA § 51-51k-10 describe how a disability application is investigated and heard. The applicant judge gets robust procedural rights (counsel, witnesses, cross-examination), but the proceeding is closed unless the judge asks otherwise.

The federal ADA (42 U.S.C. § 12101 et seq.) and the Connecticut Fair Employment Practices Act (Conn. Gen. Stat. § 46a-60 et seq.) both require employers to provide reasonable accommodations to qualified employees with disabilities, unless doing so would impose an undue hardship. The interactive process required by 29 C.F.R. § 1630.2(o)(3) is the federal vehicle for identifying what accommodations are workable. Curry v. Allan S. Goodman, Inc., 286 Conn. 390 (2008), confirms that CFEPA imposes an essentially parallel duty in Connecticut law.

Tong's reading harmonizes three statutes that touch the same scenario: § 51-49 (the Council's authority over disability retirement), § 51-5a (the Chief Court Administrator's assignment authority), and § 51-45c(c) (the Council's ability to ask a judge to seek treatment for temporary illness or addiction, but not to order it). Each one points to the Judicial Branch as the operational decision-maker about how a judge actually does the job, and the Council as the gatekeeper for retirement-related questions only.

Citations and references

Statutes and regulations:
- Conn. Gen. Stat. § 51-49 (judicial disability retirement)
- Conn. Gen. Stat. § 51-50 (retirement pay calculation)
- Conn. Gen. Stat. §§ 51-51k to 51-51u (Judicial Review Council)
- Conn. Gen. Stat. §§ 51-45b, 51-45c (judicial mental infirmity, addiction)
- Conn. Gen. Stat. § 51-5a (Chief Court Administrator's assignment authority)
- RCSA § 51-51k-10 (Council disability-retirement procedures)
- Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.
- 29 C.F.R. § 1630.2(o) (reasonable-accommodation definition)
- Connecticut Fair Employment Practices Act, Conn. Gen. Stat. § 46a-60 et seq.

Administrative-authority cases:
- Pereira v. State Board of Education, 304 Conn. 1 (2012)
- Ethics Commission of Town of Glastonbury v. FOIC, 302 Conn. 1 (2011)
- State v. White, 204 Conn. 410 (1987)
- Tannone v. Amica Mut. Ins. Co., 329 Conn. 665 (2018)

ADA / CFEPA case:
- Curry v. Allan S. Goodman, Inc., 286 Conn. 390 (2008)

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2020/2020-02_judicial_review_letter.pdf?rev=c4e0190ed54f4cb8b71aca96cd734420

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Original opinion text

OFFICE OF THE ATTORNEY GENERAL
CONNECTICUT

WILLIAM TONG
ATTORNEY GENERAL August 27, 2020

Mitchell R. Harris
Chairman

Judicial Review Council
505 Hudson Street

P.O. Box 260099
Hartford, CT’ 06126-0099

Dear Chairman Hatris:

You have requested a formal legal opinion concerning the scope of
the Judicial Review Council’s authority when considering a judge’s
disability retirement application pursuant to Conn. Gen. Stat. § 51-49.
Section 51-49(a) vests the Judicial Review Council (“Council”) with
responsibility for determining whether a judge should be retired because
he or she “has become so permanently incapacitated as to be unable to
fulfill adequately the duties of his [or her] office.” You recognized that the
Judicial Branch “obviously plays the primary role in determining the
availability and feasibility of accommodations.” Nonetheless, you note
that “neither the statute nor the regulation addresses the interplay between
the Council’s obligations and the authority with respect to reasonable
accommodations and those of the Judicial Branch.” Prompted by the
recent receipt of a judge’s disability retirement application, you have asked
the following questions:

(1) Should the Council determine that a judge “has
become so permanently incapacitated as to be unable to
fulfill adequately the duties of his office” within the meaning
of [Conn. Gen. Stat. § 51-49], must the Council
also determine pursuant to Regulations of Connecticut State
Agencies § 51-51k-10() “whether there is any reasonable
accommodation which can be made for the incapacity so

165 Capitol Avenue
Hartford, Connecticut 06106

An Affirmative Action/ Equal Opportunity Employer

Chairman Mitchell R. Harris
Page 2

that said person can perform all the essential functions of his
ot her position?”

(2) If the answer to question one is in the affirmative,
how should the Council determine whether a reasonable
accommodation that will permit the judge to perform all of
his or her essential functions is available and feasible?

(3) May the Council hear testimony or receive other
evidence from the Judicial Branch about the availability and
feasibility of potential accommodations?

(4) Is the Council authorized or legally required to
participate in discussions with the judge and the Judicial
Branch to determine whether reasonable accommodations
ate available that would permit the judge to perform all of
his or her essential functions?

(5) May the Council, upon a finding that a reasonable
accommodation that would permit the judge to continue his
or her work is available, require that such accommodations

be provided?

We conclude that in determining whether a judge is permanently
incapacitated and should be granted a disability retirement, the Council is
required to consider whether there is a reasonable accommodation that
could be made for the incapacity that would enable the judge to perform
the essential functions of his or her position. To make this determination,
the Council may conduct an investigation and hold a hearing at which it
may solicit information from the judge, the Judicial Branch and other
soutces. The Council has no authority, however, to participate with the
judge and the Judicial Branch in the interactive process required by the
Americans with Disabilities Act (‘ADA”) and the Connecticut Fair
Employment Practices Act (“CFEPA”) to agree upon reasonable
accommodations. It also has no authority to require that specific

Chairman Mitchell R. Harris
Page 3

reasonable accommodations be provided. Rather, it is up to the Judicial
Branch to engage in the interactive process with the judge to determine
what the judge needs in order to perform the essential functions of the
job and to identify an appropriate reasonable accommodation.

BACKGROUND

The General Assembly created the Council to investigate and act
on allegations of judicial misconduct and disability. See Conn. Gen. Stat.
§§ 51-51k to 51-51u, 51-45b, 51-45c, and 51-49. The Council is within the
Office of Governmental Accountability and consists of twelve regular
members, including three judges, three attorneys, and six others, all of
whom ate appointed by the Governor and approved by the General
Assembly. Conn. Gen. Stat. § 51-51k(a).

One of the Council’s responsibilities is to consider judicial disability
retirement applications. Pursuant to Conn. Gen. Stat. § 51-49, when any
judge of the Connecticut Supreme Court, Appellate Court, or Superior
Court “has become so permanently incapacitated as to be unable to fulfill
adequately the duties of his office, he may be retired by the Judicial Review
Council as hereinafter provided, upon application by him or upon its own
motion.” Conn. Gen. Stat. § 51-49(a). “If the Judicial Review Council
finds that the... judge .. . is permanently incapacitated from adequately
fulfilling his duties, the ... judge .. . shall thereupon be retired with
retirement pay to be determined as provided by section 51-50.” Conn.
Gen. Stat. § 51-49(b).

To carty out its statutory responsibilities, the Council has enacted
regulations pursuant to Conn. Gen. Stat. §§ 4-167 and 51-51k(@). Regs.,
Conn. State Agencies (“RCSA”) § 51-51k-10 governs disability
retirements. Pursuant to RCSA § 51-51k-10, when the Council receives an
application for disability retirement, it conducts a confidential
investigation and holds a hearing that is closed to the public. Id. § 51-51k-
10(b), (c) and (f). The judge who has filed the application must give the
Council “access to any pertinent medical and physical records and repotts

Chairman Mitchell R. Harris
Page 4

relevant to incapacity and shall submit to any independent medical
examination tequested by the Council.” Id, § 51-51k-10(d). The judge
“may attend the hearing, be represented by counsel, may elect to testify,
may call witnesses, present evidence and may examine or cross examine
witnesses.” Id. § 51-51k-10(g). “After all evidence and arguments have
been presented, the Council shall, in executive session, unless the person
being investigated requests it be open, determine whether said person is
so petmanently incapacitated as to be unable to fulfill adequately the duties
of his ot her office, and should be retired or whether there is any
reasonable accommodation which can be made for the incapacity
so that said person can perform all the essential functions of his or her
position.” RCSA § 51-51k-10G) (emphasis added). It is this latter
regulatory requirement that has prompted your questions.

ANALYSIS

Question One:

You ask whether the Council, if it determines that a judge “has
become so permanently incapacitated as to be unable to fulfill adequately
the duties of his office” within the meaning of Conn. Gen. Stat. § 51-49,
must also determine, pursuant to RCSA § 51-51k-10()), “whether there is
any teasonable accommodation which can be made for the incapacity so
that said person can perform all the essential functions of his or her
position.” We conclude that the answer is “yes.”

It is well established that “the legislature may create a law designed
to accomplish a particular purpose and may expressly authorize an
administrative agency to ‘fill up the details’ by prescribing rules
and regulations for the operation and enforcement of that law.” State ».
White, 204 Conn. 410, 418-19 (1987) (quoting State v. Stoddard, 126 Conn.
623, 628 (1940)). “[A]n administrative agency’s regulations ate presumed
valid and, unless they are shown to be inconsistent with the authorizing
statute, they have the force and effect of a statute.” Tannone v. Amica Mut.
Ins. Co., 329 Conn. 665, 672 (2018).

Chairman Mitchell R. Harris
Page 5

Here, the legislature has charged the Council with determining
whether a judge applying for a disability retirement “has become so
permanently incapacitated as to be unable to fulfill adequately the duties
of his office.” Conn. Gen. Stat. § 51-49. Although the term “permanently
incapacitated” is undefined, the legislature has made clear that such
incapacity requires the judge to be “unable to fulfill adequately the duties
of his office.” Id. Consistent with this legislative intent, and pursuant to its
statutory authority, the Council has enacted RCSA § 51-51k-10q) to
provide further guidance. By requiting the Council to determine whether
the judge “is so permanently incapacitated as to be unable to fulfill
adequately the duties of his or her office and should be tetited, or whether
there is any reasonable accommodation which can be made for the
incapacity so that said person can perform all the essential functions of
his ot her position,” the regulation clarifies that a judge should not be
considered permanently incapacitated if there is a reasonable
accommodation that will enable him or her to perform the essential duties
of his or her job. We see no basis for the Council not to comply with this
regulation, and make this determination, when considering an application
for a judicial disability retirement.

Having answered this question in the affirmative, we will address
yout remaining questions. In doing so, we note that the term “reasonable
accommodation” is not defined by the Council’s regulations or governing
statutes. It is a commonly used term, however, in the ADA, 42 U.S.C. §
12101 et seq., and the CFEPA, Conn, Gen. Stat. § 46a-60 et. seq., both of
which require employers to make “reasonable accommodations” for
employees with disabilities. See 42 U.S.C. § 12112 (b)(5)(A); Cunry ». Allan
S. Goodman, Inc., 286 Conn. 390, 415 (2008). For purposes of the ADA,
“reasonable accommodation” is defined, in pertinent part, as
“(m]odifications or adjustments to the work envitonment, or to the
manner ot citcumstances under which the position held or desited is
customarily performed, that enable an individual with a disability who is
qualified to perform the essential functions of that position.” 29 CLE.R. §
1630.2(0)(1)(i). It is appropriate to look to this commonly applied

Chairman Mitchell R. Harris
Page 6

definition, which the state courts look to for purposes of CFEPA, as
persuasive evidence of the meaning of “reasonable accommodation” in

RCSA § 51-51k-10(). See Conn. Gen. Stat. § 1-1(a).

Questions Two and Three:

Your second and thitd questions ask how the Council should
determine whether there is an available and feasible reasonable
accommodation that will permit the judge to perform all of his or her
essential functions, and whether the Council may heat testimony ot
receive other evidence from the Judicial Branch on this issue.

Pursuant to its regulations, the Council has several tools for
determining whether there is a reasonable accommodation that will permit
a disabled judge to perform his or her essential functions. First, it may
conduct an investigation. Pursuant to RCSA §§ 51-51k-10(b) through (e),
the Council must investigate each disability retirement application. Each
applicant being investigated must furnish the Council with access to “any
pertinent medical and physical records and reports relevant to incapacity
and shall submit to any independent medical examination requested by
the Council.” RCSA § 51-51k-10(d). Through this investigatory process,
the Council may collect information relevant to the determination
whether there is a reasonable accommodation that would enable the judge
to continue performing his or her job.

In addition to investigating, the Council is required to hold a
heating to determine incapacity. RCSA § 51-51k-10(f). The fact that the
applicant may “examine and cross examine witnesses” at the hearing, zd,
implies that the Council, as well as the applicant, may call witnesses. There
is no reason that those witnesses could not include officials from the
Judicial Branch or other individuals with information that could assist the
Council in determining whether a reasonable accommodation could be
made for the judge’s incapacity that would enable him or her to perform
the essential functions of his or her position.

Chairman Mitchell R. Harris
Page 7

Question Four:

Your fourth question asks whether the Council is authorized or
legally required to participate in discussions with the judge and the Judicial
Branch to determine whether reasonable accommodations are available
that would permit the judge to perform all of his or her essential functions.
As we understand your question, you ate asking whether the Council may
ot must participate in the interactive process mandated by the ADA and
CFEPA to determine whether there is a reasonable accommodation fot
an employee’s disability. We conclude that the answer is “no.”

The ADA tequires an employer to make “reasonable
accommodations” for an employee with disabilities unless the
accommodations would impose an undue hardship on the operation of
the employet’s business. 42 U.S.C. § 12112(b)(5)(A). As discussed above,
such “reasonable accommodations” consist of “[m]odifications or
adjustments to the work environment, or to the manner or circumstances
under which the position held or desired is customarily performed, that
enable an individual with a disability who is qualified to perform the
essential functions of the position.” 29 C.F.R. § 1630.2 (0)(1)(). The
Connecticut Supreme Court has construed the CFEPA, Conn. Gen. Stat.
§ 46a-60, to include the same duty as the ADA to provide reasonable
accommodations. Curry, 286 Conn. at 415.

Under the ADA, after an employee comes forward with a suggested
teasonable accommodation, the employer must make a good faith effort
to engage in an “informal, interactive process” with the employee to
“identify the precise limitations resulting from the disability and potential
reasonable accommodations that could overcome those limitations.” 29
C.F.R. § 1630.2(0)(3). The same requirement applies under CFEPA.
Curry, 286 Conn. at 415-418.

You question whether the Council must engage in this interactive
process with a judge who applies for a disability retirement. “It is well
settled that an administrative agency possesses no inherent power.” Pereira

Chairman Mitchell R. Harris
Page 8

v. State Board of Education, 304 Conn, 1, 41 (2012). Rather, “[i]ts authority
is found in a legislative grant, beyond the terms and necessary implications
of which it cannot lawfully function.” Id.

In the Council’s case, the General Assembly has authorized it to
determine judicial disability but has made no mention of the Council
having any authority to modify the working conditions of state court
judges. Instead, the General Assembly has expressly vested the Judicial
Branch’s Chief Court Administrator with the general authority to “assign,
reassign, and modify assignments of the judges of the Superior Court,”
among other powers. Conn. Gen. Stat. § 51-5a. In addition, when the
Chief Court Administrator asks the Council to investigate a judge’s
potential “mental infirmity or illness or drug dependency or addiction to
alcohol” pursuant to Conn. Gen. Stat. §§ 51-45b, 51-45c(c), it is the Chief
Court Administrator, not the Council, that is specifically charged with
reassigning the judge or modifying his assignment. Jd Given the Council’s
lack of any statutory authority to modify a judge’s working conditions,
coupled with the Chief Court Administrator’s express authority and
responsibility to make such modifications, we conclude that the Council
is not legally required or authorized to participate in an interactive process
between the judge and the Judicial Branch to determine whether there is
a reasonable accommodation that would permit the judge to perform all
of his or her essential functions. Rather, it is the role of the Judicial Branch,
as the judge’s employer, to engage in that interactive process.

Question Five:

If the Council finds that a reasonable accommodation is available
that would permit the judge to continue his or her work, you question
whether the Council may require that it be provided. We conclude that it
cannot.

Chairman Mitchell R. Harris
Page 9

As discussed in the ptior question, an administrative agency “must
act strictly within its statutory authority.” Ethics Commission of Town of
Glastonbury v. Freedom of Information Commission, 302 Conn. 1, 8 (2011).
Nothing in Conn. Gen. Stat. § 51-49 or the Council’s other governing
statutes empowers it to require the Judicial Branch or any other entity to
ptovide a reasonable accommodation. In a related context, if the Council
finds that a judge is suffering from a temporary mental infirmity, mental
illness, drug dependency or addiction to alcohol, it “shall request the judge
... to seek appropriate treatment,” but it is not required to order that
treatment. Conn. Gen. Stat. § 51-45c(c). Similarly, when the Council
considers a judicial disability retirement application, it has no
responsibility for providing a teasonable accommodation nor any
authority to order that any other entity provide such an accommodation.
Rather, the Judicial Branch, as the judge’s employer, is responsible for
determining whether to offer any such accommodation.

We trust that the foregoing responds to your inquiries.

Very truly yours,

WILLIAM TONG