Shannon v. Comm'r Housing

• Decision Date: 02 August 2016
• Docket Number: SC19562
• Court: Connecticut Supreme Court
• Parties: SHANNON v. COMMISSIONER OF HOUSING

SHANNON v. COMMISSIONER OF HOUSING

SC19562

Supreme Court of Connecticut

August 2, 2016

DISSENT

ESPINOSA, J., dissenting. I respectfully disagree with the majority's conclusion that the decision of the defendant, the Commissioner of Housing,¹ to terminate rental assistance provided under a statutory rental assistance program to the plaintiff, Francis Shannon, on the basis of § 17b-812-13 (9) of the Regulations of Connecticut State Agencies was an impermissible retroactive application of the regulation as applied to the plaintiff. The majority reasons that under General Statutes § 55-3, which codifies a presumption against the retroactivity of enacted statutes unless explicitly stated otherwise, the termination of rental assistance to the plaintiff constitutes "a new obligation" on the plaintiff's status as a registered sex offender. I do not agree that the defendant's decision involved retroactive application of § 17b-812-13 (9) of the regulations to the plaintiff. Instead, I conclude that the defendant properly terminated rental assistance to the plaintiff upon learning that the plaintiff is subject to lifetime sex offender registration. The plain language of § 17b-812-13 of the regulations provides the defendant with the discretion to prospectively terminate rental assistance to program participants. Because the majority concludes that the termination of rental assistance to the plaintiff was a retroactive application of the regulation and that the defendant was without authority to terminate that assistance, I respectfully dissent.

In its opinion, the majority adopts the plaintiff's contention that the trial court improperly dismissed his administrative appeal on the ground that the defendant did not apply § 17b-812-13 (9) of the regulations retroactively in terminating his rental assistance. In contrast, the defendant argues—in my view, correctly—that the termination of the plaintiff's rental assistance was purely prospective and that the plain language of § 17b-812-13 clearly provides the defendant with the discretion to terminate rental assistance to a present participant under the program. Accordingly, I would conclude that the trial court properly determined that application of § 17b-812-13 (9) to the plaintiff was not impermissively retroactive and that the defendant did not exceed her authority in doing so.

I begin with the text of § 17b-812-13 of the regulations. This court recognizes that "[a]dministrative regulations have the full force and effect of statutory law and are interpreted using the same process as statutory construction, namely, under the well established principles of General Statutes § 1-2z." (Internal quotation marks omitted.) Sarrazin v. Coastal, Inc., 311 Conn. 581, 603, 89 A.3d 841 (2014); Alexandre v. Commissioner of Revenue Services, 300 Conn. 566, 578, 22 A.3d 518 (2011). "Only if we determine that the [regulation] is not plain and unambiguous or yields absurd or unworkable results may we consider extratextual evidence of its meaning such as the [regulatory] history and circumstances surrounding its [promulgation] . . . . The test to determine ambiguity is whether the [regulation], when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Sarrazin v. Coastal, Inc., supra, 603-604; Tine v. Zoning Board of Appeals, 308 Conn. 300, 305-306, 63 A.3d 910 (2013).

Under the rental program's enabling act, "[t]he Commissioner of Housing shall implement and administer a program of rental assistance for low-income families living in privately-owned rental housing. . . ." General Statutes (Supp. 2016) § 8-345 (a). Under the mandate of that legislative directive, in December, 2012, the defendant amended § 17b-812-13 of the regulations, which provides nine enumerated bases upon which the defendant may deny or terminate rental assistance. The regulation clearly states that "[t]he department or its agent may deny program assistance to an applicant or terminate assistance to a participant for any of the following reasons . . . ." (Emphasis added.) Regs., Conn. State Agencies § 17b-812-13. One of the reasons that may be cited for the denial or termination of benefits is: "[A] household family member is subject to a registration requirement under a state or federal sex offender registration program." (Emphasis added.) Id., § 17b-812-13 (9). As the defendant notes in her brief, the present tense phrasing of the regulation clearly demonstrates that the defendant has the authority to terminate rental assistance to a program participant, such as the plaintiff, who is presently subject to a sex offender registration requirement. Furthermore, the regulation provides that the defendant "may" terminate benefits for one of the enumerated reasons. Id., § 17b-812-13. This court has " 'consistently held that "may" is directory rather than mandatory.' " Office of Consumer Counsel v. Dept. of Public Utility Control, 252 Conn. 115, 122, 742 A.2d 1257 (2000); see Seals v. Hickey, 186 Conn. 337, 345, 441 A.2d 604 (1982). We therefore recognize that "the word generally imports permissive conduct and the conferral of discretion." (Internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, supra, 122; see Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996); see also Forest Walk, LLC v. Water Pollution Control Authority, 291 Conn. 271, 286, 968 A.2d 345 (2009) (recognizing that agencies have broad discretion in carrying out administrative duties).

Accordingly, the plain language of § 17b-812-13 of the regulations unambiguously provides the defendant with the discretion to terminate rental assistance to a program participant if the participant falls within one of the nine reasons listed in the regulation. In the present case, the plaintiff is required to register as a sex offender due to his 1997 conviction in New Jersey. I also note that in oral argument before the trial court, counsel for the defendant represented that the defendant's decision to terminate the plaintiff's benefits under § 17b-812-13 (9) was motivated, at least in part, by the defendant's discovery that the plaintiff had misrepresented his status as a sex offender on a 2010 form filed with the defendant as part of the annual recertification process for the plaintiff's continued eligibility to receive rental assistance. Apparently, the defendant was unaware of the plaintiff's sex offender status at the time he was initially admitted to the program. Because the plaintiff's conviction was in New Jersey, the defendant's initial Connecticut background check did not reveal that conviction, and the defendant remained unaware of the plaintiff's status until a national sex offender registry was available online in 2010. The defendant had no knowledge of the plaintiff's status at the time of his admission to the rental program in 2009.

The defendant, therefore, had the authority to terminate the plaintiff's continued rental assistance under the program. The termination of rental assistance to the plaintiff is no different than if the defendant had terminated a program participant's continued rental assistance for one of the other reasons provided in § 17b-812-13 of the regulations, such as when a participant currently owes rent or other moneys in connection with a rental subsidy program, has engaged in violent or abusive behavior toward the defendant's personnel or when a participant fails to report an increase in personal income. See Regs., Conn. State Agencies § 17b-812-13 (6) through (8). I also observe that the majority appears to suggest that once an applicant has been admitted into the rental assistance program and begins receiving rental assistance, the only circumstance that would warrant the termination of rental assistance to a participant is the participant's failure to comply with the obligations outlined in § 17b-812-12 of the Regulations of Connecticut State Agencies. Although § 17b-812-12 establishes a number of acts that participants must perform and lists acts that a participant may not undertake while participating in the rental assistance program, that regulation clearly does not serve as an exclusive listing of those circumstances that may lead to the termination of rental assistance to a participant. For example, § 17b-812-13 provides broader grounds for termination, as it provides that the defendant may both deny rental assistance to initial applicants and terminate rental assistance to admitted participants on the bases of the enumerated grounds for termination, some of which—such as registration as a sex offender or unpaid rent or other moneys—have no corollary in § 17b-812-12.

In the present case, the plaintiff was subject to a sex offender registration requirement at the time he was receiving rental assistance benefits. The defendant had the discretion to terminate rental assistance to program participants subject to such registration requirements. The defendant did so. In my view, the text of § 17b-812-13 of the regulations is clear and permits the defendant to terminate rental assistance to program participants in the very manner in which she did so in regard to the plaintiff.

The majority, however, determines that the termination of rental assistance to the plaintiff constitutes a "new obligation" on the plaintiff's sex offender status resulting from his 1997 conviction that runs afoul of Connecticut's codified presumption against retroactive legislation. General Statutes § 55-3. I disagree with the majority's characterization that the defendant's reliance on § 17b-812-13 (9) of the regulations constituted retroactive application of the regulation. As I have explained, the regulation provides the defendant with the discretion to terminate current rental assistance benefits whenever a participant falls within one of the nine outlined scenarios. See Regs., Conn. State...