UPDATED: AG opinion backs Connecticut Port Authority

Jan. 25—The Connecticut Port Authority had the right to enter into a development agreement that is the foundation for the work that is now transforming State Pier in New London into a hub for the offshore wind industry, Attorney General William Tong said in an opinion released on Tuesday.

The authority to sign the Harbor Development Agreement in 2020 came into question during a review of the procurement activity of the port authority taken up by the Connecticut State Contracting Standards Board.

The board, which has been investigating the port authority since it received a complaint in 2020, had concluded in its review that state statues enabling quasi-public agencies to enter into public-private partnerships had lapsed prior to signing of the agreement. The board concluded the port authority "did not have statutory authority to enter into this type of contract," but had asked the attorney general's office for a legal opinion.

The port authority had immediately disputed the board's conclusion as an erroneous interpretation of the law. Tong said in his opinion that the port authority was in fact eligible to enter into a public private partnership with Gateway, Eversource and Orsted as authorized by legislation created in 2011 under Chapter 55d of the General Statutes. The statute allowed a quasi-public agencies like the port authority to contract with a "private entity" to "design, develop, finance, construct, operate or maintain one or more state facilities."

The state legislature modified the statute in 2021. The statute now only allows the state Department of Transportation to enter into the public-private partnerships.

"So the Port Authority was eligible for Chapter 55d partnerships to the same extent as other quasi-public agencies from 2015 until June 27, 2021," Tong said.

In an updated version of Tong's opinion, a footnote reads: "This opinion does not speak to the legality, propriety, or ethics of any particular public-private partnership. We do not assume that any specific project or development characterized as a 'public-private partnership' is — or should be — a partnership within the meaning of chapter 55d of the General Statutes."

The port authority issued a statement on Wednesday applauding the ruling.

"The Attorney General's Opinion is welcomed confirmation that the CPA's statutory authority to enter into public-private partnerships is clear and consistent with the CPA's position when this was first raised one year ago," the statement reads.

Connecticut Contracting Standards Board Chairman Lawrence Fox on Wednesday said the board appreciated the formal opinion and expected the board would take time to discuss it. He said it also "begs a discussion in the legislature," about the intent of state legislation regarding public-private partnerships.

g.smith@theday.com

This story includes an updated version of Tong's opinion.