July 31, 2003
STATE HOMELAND SECURITY AND EMERGENCY RESPONSE
By: Sandra Norman-Eady, Chief Attorney
You asked for the legal authority that permitted the Division of Homeland Security to be established in the Department of Public Safety. You also asked how the duties and responsibilities of the division differ from those of the Office of Emergency Management.
The Office of Legislative research is not authorized to give legal opinions and this report should not be viewed as one.
According to the Department of Public Safety's web page and a 2002 Office of Policy and Management (OPM) memorandum to the members of the General Assembly summarizing the state's post 9/11 activities, Governor John Rowland authorized the creation of the Division of Protective Services (later changed to the Division of Homeland Security) within the Department of Public Safety in 2001. However, today OPM reports that the division resulted from an internal Department of Public Safety reorganization. If the governor created the division, his authority for doing so is unclear.
Under the state constitution, the governor is the supreme executive power, but the state Supreme Court has held that this designation gives him little or no inherent power. Instead, his authority must be found in other constitutional provisions or in state statute. No constitutional provision or state statute expressly authorizes the governor to create a state agency or division. However, Article Fourth, § 12 of the state constitution specifically authorizes him to see that the laws are faithfully executed and § 3-1 of the Connecticut General Statutes authorizes him to take any proper action concerning any matter involving the enforcement and protection of state laws and citizens, respectively. (The governor also has the authority to proclaim a state of emergency and take certain actions to protect state citizens during the emergency. But since he issued no such proclamation prior to creating the division, it does not appear that this authority was the basis for it.)
Although this authority seems broad, it is unclear whether the governor could use it as a basis for creating a division within a state agency. It appears that an attempt to use this authority in this manner would be contrary to other statutory provisions that vest government reorganization in others.
On the other hand, it is clear that the governor has explicit authority to appoint most state agency heads. These department heads represent the governor in carrying out the missions of their department, serve at the governor's pleasure, and can be removed without notice or hearing. Department heads are responsible for organizing their departments in a way that promotes economy and efficiency. Each must organize his department and any internal agencies into such divisions, bureaus, or other units, as he deems necessary for the efficient conduct of the department's business. The Office of Policy and Management controls state agencies' financial and budgetary operations.
But not even department heads have the authority to abolish or consolidate departments. By law, the legislature's Government Administration and Elections Committee (GAE) is responsible for overseeing all government organization and reorganization, specifically, any transfer, allocation, or consolidation of a state department or agency. And the General Assembly is responsible for deciding when and if to take this action.
There does not appear to be a bright line that divides the responsibilities of the Division of Homeland Security and the Office of Emergency Management (OEM) regarding state security. To illustrate this point one only needs to review remarks by the governor's office in the aftermath of 911. In a press release that announced the study that ultimately led to the creation of the division, the governor asked the Office of Policy and Management and the Department of Public Safety to look at the feasibility and cost of giving the mission of statewide security to the Connecticut State Police. The new division is supposed to serve as the state counterpart to the Federal Office of Homeland Security. Yet during the same period, the governor designated OEM as the state's (1) civil defense organization responsible for responding to technological and natural disasters and (2) entity responsible for coordinating terrorism incident planning and consequence management.
The Division of Homeland Security is responsible for identifying, developing, and implementing strategic preventative and reactionary plans that would meet present and future challenges and specific public safety concerns.
OEM is responsible for responding to a wide range of technological and natural hazards. It develops and implements the state's civil preparedness plan (commonly referred to as the emergency management plan) and its Nuclear Safety Emergency Preparedness Program.
AUTHORITY TO ORGANIZE STATE GOVERNMENT, ESPECIALLY TO CREATE A DIVISION
Under Article Fourth, § 5 of the state constitution, the governor is the state's supreme executive power. Rather than interpreting this provision as giving the governor the authority to organize the executive branch, the Connecticut Supreme Court has done just the opposite. The Court has held that this provision alone “vests little or no inherent power in the Governor (Bridgeport v. Agnostinelli, 163 Conn. 537, 546 (1972)). His authority generally must be found in other, more specific provisions (University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 368 (1986)). Article Fourth, Section 12 of the state constitution specifically authorizes him to see that the laws are faithfully executed and CGS § 3-1 authorizes him to take any proper action concerning any matter involving the enforcement and protection of state laws and citizens, respectively. Although no state court has construed either of these provisions as giving the governor the authority to create a division within a state agency, he could argue that they are broad enough to do so.
The difficulty with the argument is that the law vests the authority to organize state government in other entities and another branch of government.
By law, department heads, who serve at the governor's pleasure and represent the governor in carrying out the missions of their departments, are authorized to reorganize their departments, hire deputies and other employees, make regulations, enter into contracts, and receive money from the federal government, corporations, associations or individuals. They must organize the department and any internal agency (including additions and consolidations) into such divisions, bureaus, or other units as they deem necessary for the efficient conduct of business. But, departments and agencies must maintain any statutorily required bureau, division, or unit (CGS § 4-8).
With respect to multi-agency organization, the legislature is the decision maker. By law, the GAE Committee is responsible for overseeing all government organization and reorganization, particularly any transfer, allocation, or consolidation of any state agency or department. The committee must continuously review the organization and reorganization and can from time to time make recommendations to the General Assembly (CGS § 2-35a). Any decision by the General Assembly to terminate modify, consolidate, or reestablish a government entity or program must (1) be based on a demonstrated public need and (2) take place after the GAE Committee holds a public hearing on the action (CGS § 2c-5-8).
THE DIVISION OF HOMELAND SECURITY
The Division of Homeland security is located within the Department of Public Safety. Gubernatorial appointee, Deputy Commissioner Vincent J. DeRosa heads the division.
The division's stated mission is to use all available state resources to develop and implement unified safety and security measures in an effort to prevent, mitigate, and manage incidents threatening the quality of life of state citizens.
The division is sub-divided into four specialized sections: statewide security, domestic terrorism, executive protection, and citizen corps. These functions were created to address recent federal regulations and facilitate the growing demands for increased public safety with emphasis on establishing and maintaining a cooperative, multi-agency network vital to the overall mission of homeland security.
The Office of Statewide Security contains the Critical Infrastructure Protection Unit and the Urban Search & Rescue Task Force. The Domestic Terrorism Section contains the Statewide Anti-Terrorism Task Force and the Joint Terrorism Task Force, the Intelligence Unit, and the Homeland Security Advisory System. The Executive Protection Section contains the Dignitary Protection Unit and the Governor's Security Unit. Dignitary protection offers support assistance to visiting dignitaries and their protective details. Governor's security staffs a security operations center at the governor's residence 24-hours a day and provides the governor with personal protection whenever he is away from his residence. The Citizen Corps is a component of USA Freedom Corps that creates opportunities for people to help communities prepare for and respond to emergencies.
We took all of the information regarding the division from its web page at www.ct.gov/hls/cwp/view.
OFFICE OF EMERGENCY MANAGEMENT
OEM is located within the Military Department. The department's adjutant general is in charge of the office and a director manages and supervises its daily operations. The governor appoints both. The current adjutant general is William A. Cugno and the acting director is Thomas P. Thomas, Jr.
OEM's main office is located in Hartford and includes the State Emergency Operations Center. It maintains five area offices. Each has an area coordinator and a secretary responsible for providing direct support and liaison services to municipalities. OEM also maintains a Radiological Instrumentation and Calibration Facility in Windsor Locks to support the Nuclear Response Plan.
The OEM office director is responsible for preparing a comprehensive emergency management plan and program, which he must integrate and coordinate with the emergency management activities of Connecticut towns and plans of the federal government and other states. Emergency management means all activities and measures designed or undertaken to (1) minimize or control the effects of a major disaster upon civilians; (2) minimize the effects that an attack upon the United States would have on civilians; (3) deal with any emergency created by any such attack or disaster; and (4) carry out emergency repairs to, or emergency restoration of, vital utilities and facilities destroyed or damaged by any such attack, disaster, or emergency (CGS § 28-1(d)).
The governor must approve the emergency management plan and program the director prepares and, when approved, all government agencies and emergency management forces must carry out their assigned duties and functions (CGS § 28-5(b)). The director must use the personnel, services, equipment, supplies, and facilities of existing state offices, departments, and agencies to the maximum extent possible (CGS § 28-5(d)). He must institute training and public information programs and take preparatory steps to operate the plan during emergencies (CGS § 28-5(c)).
With the adjutant general's concurrence, the director may enter into contracts for necessary services to execute his duties properly (CGS § 28-2(a)). With the governor's approval, he may (1) represent the state on regional or interstate emergency management organizations, (2) enter into mutual aid arrangements with other states, and (3) establish and operate area or district offices to control and coordinate emergency management preparations and mutual aid among communities (CGS § 28-4).
The director may make necessary orders and the adjutant general may make necessary regulations to develop and implement the emergency management plan and program. The orders and regulations have the full force of law (CGS § 28-5(e)).
The adjutant general is responsible for implementing the state's nuclear safety emergency preparedness program; in practice, OEM implements it. The program includes developing response plans for nuclear power plants, training personnel and testing the plans, and participating in other activities the Nuclear Regulatory Commission and Federal Emergency Management Agency might require. The program is funded by an assessment on Nuclear Regulatory Commission licensees operating nuclear power generating facilities in the state.