Attorney General's Opinion
Attorney General Richard Blumenthal
January 24, 1994
Kevin P. Johnston
Robert G. Jaekle
Auditors of Public Accounts
State Capitol
210 Capitol Avenue
Hartford, CT 06106
Dear Mr. Johnston and Mr. Jaekle:
By letter dated August 17, 1993, you have asked our office as to the appropriateness of compensating a public member of the Commission on Hospitals and Health Care, Gwen B. Weltman, for the period September 4, 1992 to June 3, 1993. The question relates to an opinion of the Attorney General dated April 27, 1993 issued to the Honorable John B. Larson, President Pro Tempore of the Senate which concluded that the statutory provisions existing at the time of appointment barred this particular individual from serving as one of the public members because she had once been affiliated with a health care institution. By letter dated August 26, 1992, Ms. Weltman was appointed to the position, effective September 4, 1992 subject to the approval of the legislature at its next general session. See, Conn.Gen.Stat. 19a-146. The question of her legal qualification for the post arose and the Attorney General issued the April 27, 1993 opinion. Ms. Weltman continued to work although she did not vote on matters before the Commission. She was not notified by the Governor that he was withdrawing her nomination. In June, the General Assembly passed 1993 Conn.Pub.Act 93-229, effective in pertinent part on June 4, 1993, which changed the statutory requirements for qualification as a public member on the Commission and which allowed Ms. Weltman to qualify. On June 9, 1993, the General Assembly approved the nomination of Ms. Weltman to be a public member. You ask whether Ms. Weltman should have been paid for the period September 4, 1992 through June 3, 1993 during which she had been appointed but could not have served as a public member of the Commission and if such payments are determined to be improper, who is responsible for recovering any overpayments. It is our opinion that the State cannot recover the salary paid to Ms. Weltman and thus there is no need to answer your second question. Good Faith De Facto Officer
We note that this is not a case of a usurper or intruder to an office or even of one who has to defend her claim to office against another claiming proper title to it. Instead, this situation involves an individual who, in good faith, accepted appointment by the Governor and while awaiting legislative approval, discovered that there was a problem with her legal qualifications. The Governor never withdrew her nomination pending a change in the statute nor did the legislature reject her confirmation. The courts have recognized a number of circumstances in which a person who does not hold a public office de jure because his or her appointment was void may qualify as a de facto officer: First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. Second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond or the like. Third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public. Fourth, under color of an election or appointment by or pursuant to a public unconstitutional law before the same is adjudged to be such.
Furtney v. Zoning Commission, 159 Conn. 585, 595-596 (1970) (quoting State v. Carroll, 38 Conn. 449, 471 (1871). Ms. Weltman, having been nominated by the Governor, was serving under color of a known appointment which was void because she was not eligible. She was therefore an officer de facto for the period from September 4, 1992 through, at least, April 27, 1993, when the opinion of this office was issued.
Although there is no Connecticut case on the issue, it is the general rule in other jurisdictions that an officer de facto acting in good faith is entitled to the compensation attached to the office, where there is no de jure officer claiming the office. See, Adams v. Goldner, 383 A.2d 1149, 1151 (N.J.Apell.Div.1978) aff'd. 397 A.2d 1088 (N.J.1979); Board of Com'rs of Douglas County v. Madan, 5 P.2d 866, 867 (Colo.1931); Carter v. Thomas, 46 P.2d 460, 461 (Okl.1935); Fort Worth v. Morrison, 164 S.W.2d 771, 772 (Tex.Civ.App.1942); Juliani v. Darrow, 119 P.2d 565, 568 (Ariz.1941); O'Malley v. Parsons, 85 P.2d 739, 741 (Idaho 1938); State v. Smith, 126 N.W.2d 215, 218 (Wisc.1964). See also, 67 C.J.S. 275. Also, "[it] is a well established rule that, in the absence of statutory permission, salary which has been paid a de facto officer cannot be recovered by public authorities, where such officer, acting in good faith, actually rendered the services for which he was paid." State v. Ferguson, 76 N.E.2d 886, 891 (Ohio 1947). In accord, Badeau v. United States, 9 S.Ct. 579, 583 (1889); McKenna v. Nichols, 175 S.W.2d 121, 123 (Ky.1943). Both of these principles are sound as a matter of legal policy. For the time period during which she was a de facto officer, there is no question that Ms. Weltman acted in good faith or that she rendered the services for which she was paid. In addition, there is no other individual who is claiming her office for the period in question. Therefore, as a de facto officer acting in good faith, Ms. Weltman is entitled to retain her salary through April 27, 1993. Once this office issued the April 27, 1993 opinion, Ms. Weltman's status as a de facto officer is less clear. Because of our determination below, however, we need not resolve that issue. Legislative Ratification
There is an additional reason the State is prohibited from recovering the salary paid to Ms. Weltman. The events surrounding Ms. Weltman's confirmation demonstrate that the General Assembly ratified her appointment from the original date of appointment. Ms. Weltman was appointed to the Commission pursuant to 19a-146 and 4-19 effective September 4, 1992. As such she could serve "without confirmation from the date of [her] appointment subject to approval at the next regular session of the general assembly." Conn.Gen.Stat. 19a-146. The legislature convened for its next session on January 6, 1993. By letter dated March 5, 1993, Senator Larson stated that at the request of the co-chairs of the Executive and Legislative Nominations Committee, he was seeking a formal opinion on whether Ms. Weltman qualified as a public member pursuant to 19a-146. This office responded on April 27, 1993. Once Ms. Weltman's ineligibility to serve was determined, the Governor did not withdraw the appointment or ask her to vacate the Commission nor did the legislature vote to reject her confirmation. Instead, the General Assembly amended the Commission statute 19a-146, effective June 4, 1993, which allowed Ms. Weltman to serve. See, P.A. 93-229. Ms. Weltman's situation was specifically referred to on the floor of the House and Senate during debate on the amendment. House Proceedings, June 2, 1993, p. 9789 (Rep. Courtney); Senate Proceedings, June 4, 1993, p. 4050-4058 (June 4, 1993) (Senator Gunther). The legislators were thus made aware that the change in the statute would be affecting a pending nomination which awaited their confirmation. A few days after passing 1993 Conn.Pub.Act 93-229, the legislature considered the nomination of Ms. Weltman. The nomination considered was the original one, effective September 4, 1992; the Governor did not renominate Ms. Weltman after passage of 1993 Conn.Pub.Act 93-229. The legislature approved her nomination on June 9, 1993. The principle is well established that administrative acts unauthorized by the legislature at the time may become valid and binding by ratification. Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 605 (1975). This principle is closely analogous to the passage of validating acts: "The effect of validating acts is to make legal and regular that which was illegal and irregular. The legislature may cure by subsequent enactment the nonobservance of a requirement which it originally might have dispensed with.... Such an enactment may be applied retrospectively to pending cases." C.S.E.A., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 454-455 (1973). Although the legislature did not make the amendment to 19a-146 explicitly retroactive and thus did not pass a validating act, it was clearly the legislative intent to allow Ms. Weltman to continue to serve and to confirm a nomination which had been pending since September 4, 1992 and made pursuant to the previous version of 19a-146. The legislature's actions in this case demonstrate ratification of her appointment as of the original date. Based on the legal principles explained above, it is the opinion of this office that the State cannot move to recover the salary paid to Ms. Weltman.
Very truly yours,
RICHARD BLUMENTHAL
ATTORNEY GENERAL
Maite Barainca
Assistant Attorney General
RB:mb
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