Attorney General, Richard Blumenthal

January 25, 1990

Honorable James V. Albano
Chairman
State Electrical Work Examining Board
165 Capitol Avenue
Hartford, CT 06106

Dear Mr. Albano:

In your letter dated September 26, 1989, you requested our opinion concerning Conn. Gen. Stat. e21a-8(9). Section 21a-8(9) permits the Department of Consumer Protection (“DCP”) to contract with third parties to administer licensing examinations on behalf of various state boards and commissions, including the State Electrical Work Examining Board (the “Board”). You asked what the extent of the Board’s authority was in the selection process of the third party. We conclude that the Board, by granting or withholding its consent, has the power to determine whether DCP will contract with a third party. However, once the Board consents to DCP’s decision to contract, the Board has no further authority to determine which third party DCP will select, or to otherwise participate in the selection process.

As background, we understand from DCP that in the past DCP has contracted with the Educational Testing Service (“ETS”) and ACSI to administer all electrical licensing exams. Last year, ETS announced that it was no longer going to administer electrical exams and that DCP would have to find another entity to administer the electrical contractor and journeymen’s exams. DCP temporarily gave the contract to ACSI. While DCP was considering its options, the Board independently interviewed other possible third party contractors and recommended a company other than ACSI to DCP. DCP told the Board that the Commissioner of DCP would make the final selection. The Commissioner chose ACSI. The Board objected to the Commissioner’s choice and has requested this opinion.

The “proper place to begin in construing a statute is with the language of the statute itself.” Mohegan Tribe v. State of Connecticut, 638 F.2d 612, 618 (2d Cir.) Conn. 1980). Section 21a-8 states that:

The department of consumer protection shall have the following powers and duties, with regard to each board or commission transferred to the department of consumer protection under section 21a-6:…(9) the department may contract with a third party, if the commissioner deems it necessary and if the appropriate board or commission consents, to administer licensing examinations and perform all attendant administrative functions in connection with such examinations and may require the payment of an examination fee to such third party.

The State Electrical Work Examining Board was one of the boards transferred to DCP under Conn. Gen. Stat. e21a-6.

On its face, Section 21a-8(9) states that DCP may contract with third parties provided two conditions are met. First, the Commissioner of DCP must deem a third party contract necessary, and second, the Board must consent. We understand that in the present case, both conditions have been met. 1 Grammatically, the subject of Section 21a-8(9) is “the department,” which is DCP. The verb, “may contract”, refers to DCP. It is DCP alone, not the Board, which has the statutory authority to contract with third parties under Section 21a-8(9). Had the General Assembly intended the Board to participate in the contracting process, it could have said so. As the statute is written, however, it is DCP which has sole power to contract with third parties.

The clause “if the appropriate board or commission consents” refers back to, and qualifies, the provision that the department may contract with a third party. “Consent” means to agree. American Heritage Dictionary, 2d. Edition, 1985 p. 312. Thus, the plain language of Section 21a-8(9) requires the Board to agree to DCP’s act of contracting before DCP may take action.

What is unclear in the language of Section 21a-8(9) is whether the Board must consent to the particular third party with which DCP wants to contract, or whether, having consented to DCP’s general decision to contract with any third party, the Board has no further say in the selection process. Commonly accepted rules of statutory construction require that if the language of a statute is ambiguous, a court must construe the statute “in light of its legislative history, its language, the purpose it is meant to serve and the circumstances surrounding its enactment.” Waterbury Petroleum Products Inc. v. Canaan Oil and Fuel Co., Inc., 193 Conn. 208, 231, 477 A.2d 988 (1984). Unfortunately, the legislative history of Section 21a-8(9) does not discuss either the General Assembly’s intent in enacting Conn. Pub. Acts No. 83-487, later codified as Section 21a-8(9), or the circumstances surrounding its enactment. Moreover, we found no case law interpreting Section 21a-8(9) and nothing in the other sections of Chapter 416 concerning the Department of Consumer Protection, or the provisions of Chapter 393 concerning the Board, which clarifies the meaning of the statute.

Turning to another rule of statutory construction, courts must use common sense in construing a statute and assume that a reasonable and rational result was intended. Kron v. Thelen, 178 Conn. 189, 192, 423 A.2d. 857 (1979). Given the fact that the plain language of Section 21a-8(9) gives DCP alone the power to contract with third parties, common sense dictates that the requirement that the Board give its consent must mean consent to DCP’s decision to contract in general, not consent to DCP’s choice of third parties. Otherwise, DCP could spend considerable time in the bidding, selection and negotiation process with third parties, only to have the Board withhold its consent to DCP’s choice. DCP would then have to start the process over again, hoping that its next choice would be acceptable to the Board. Alternatively, the Board might withhold consent not because it disagreed with DCP’s choice, but because it disagreed with some of the contractual terms negotiated by DCP. Interpreting Section 21a-8(9) to give the Board this power is unreasonable. It effectively strips DCP of its authority to contract. Instead, the requirement that the Board consent must mean consent to the decision to contract with any unspecified third party. Once the Board has consented to the decision to contract with a third party, however, the Board’s statutory authority ends. Of course DCP may include the Board in the selection process if it chooses, but it is not required to do so.

In addition, we note that subsection (7) of Section 21a-8 authorizes the department to “… perform any other function necessary to the effective operation of the board or commission and not specifically vested by statute in the board or commission.” Since we find no specific statutory authority for the board to contract with a third party, this subsection buttresses our conclusion that it is the department which is to select the third party.

We note that Section 21a-8 (5) provides that the examination will be given by the department “[u]nder the supervision of the appropriate board or commission…”. (emphasis added). Section 20-333 provides, inter alia, that the department “… shall conduct such written, oral and practical examinations as the appropriate board, with the consent of the commissioner of consumer protection, deems necessary to test the knowledge of the applicant in the work for which a license is being sought.” (emphasis added). We consider this a form of checks and balances intended by the legislature to enable each board to insure that the examinations given are adequate and appropriate to test fairly each applicant’s qualifications.

Accordingly, if the department does not include the board in the selection process of a third party to administer the examination, then the contract entered into by the department under Section 21a-8 (9) should contain a provision whereby the board together with the commissioner has an opportunity, prior to the giving of the examination, to review and approve the content of the examination.

Thus, based on the above, we conclude that the Board has the authority to consent to DCP’s decision to contract with an unspecified third party, but having given its consent, the Board has no further statutory authority in the selection process.

Very truly yours,

CLARINE NARDI RIDDLE
ATTORNEY GENERAL

Robert M. Langer
Assistant Attorney General

CNR/RML/rc


1 DCP states that it considers a third party contract necessary in order to ensure the security of the exam process and to avoid the extraordinary administrative workload which administering electrical exams would entail. We also understand that the Board consented to DCP’s decision to contract with a third party.

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