Advisory Opinion No. 1994-16
Application Of
Code Of Ethics To Member Of
Attorney Elliott Pollack, a member of the Connecticut Medical Examining Board (CMEB), has asked whether the Code of Ethics for Public Officials, Conn. Gen. Stat. §1-79 et seq., prohibits him from representing physicians during the course of investigations conducted by the Public Health Hearing Office of the Department of Public Health and Addiction Services (DPHAS) (formerly the Department of Health Services). Attorney Pollack indicates that, should the matter proceed to a hearing before the CMEB, he would refrain from appearing before that body.
Conn. Gen. Stat. §20-8a(a) states
that [t]here shall be within the department of health services a
The language of Conn. Gen. Stat. §20-8a quoted above makes it clear that the CMEB is established within DPHAS and is a part of that department, not an independent entity. DPHAS employees provide such staff to the CMEB as the department deems necessary, investigate all complaints whether or not they are ultimately brought before the CMEB, and prosecute all matters which do reach the stage of a CMEB hearing. See, for example, Conn. Gen. Stat. §§19a-14(a)(2), (8), (10), and (11).
DPHAS also controls the allocation, disbursement and
budgeting of funds appropriated to the department for the operation of
CMEB. Conn. Gen. Stat. §19a-14(a)(1). By contrast,
for example, the statute setting up the Commission on Hospitals and Health Care
states that [t]here is established an independent commission on
hospitals and health care. . .: such staff as that
Commission has is provided by DPHAS as the commission may deem
necessary. See Conn. Gen. Stat.
§§19a-146, 19a-148(a), and State Ethics Commission Advisory Opinion No. 91-21, 53
Thus, both while a member of the CMEB and for a year after
leaving the CMEB, Attorney Pollack may not represent anyone with regard to an
investigation which might ultimately be resolved by that board. Similarly, he must not work on any matter
involving DPHAS personnel with whom he may work in his official public
capacity. As a current CMEB member, the
acceptance of such employment in his private capacity would violation Conn.
Gen. Stat. §1-84(b), which prohibits the acceptance of outside employment by a
public official if such employment would impair his independence of judgment
with regard to his official duties.
Here, Attorney Pollacks effectiveness, if not his impartiality, as a
CMEB member would most certainly be jeopardized by his acceptance of private
casework subject to CMEBs jurisdiction. See State Ethics Commission Advisory Opinion
No. 93-10, 54
Such outside employment would also be an inappropriate use of office in violation of Conn. Gen. Stat. §1-84(c). The attorneys at DPHAS would be placed in the untenable position of negotiating cases with Attorney Pollack in his private role, and then appearing before him as prosecutors on other matters, albeit unrelated, for which he sits in a decision-making capacity. And, as the Commission has stated in past opinions, Attorney Pollacks position as a CMEB member lends his private practice in this area a credibility among potential clients which does not arise from his expertise alone, but rather results from this use of office, however inadvertent. See Ethics Commission Advisory Opinion No. 93-10, supra.
With regard to Attorney Pollacks activities after leaving
the CMEB, the revolving door provisions of the Code of Ethics prohibit his
representation of anyone for compensation before DPHAS for a year after he
leaves state service. See Conn.
Gen. Stat. §1-84b(b), State Ethics Commission Advisory
Opinion No. 93-15, 55
The one-year revolving door restriction of §1-84b(b) does
not extend to other members of Attorney Pollacks firm, even if he is a partner
and therefore the firm is a business with which he is associated as that term
is defined in the Code of Ethics. Conn. Gen. Stat. §1-79(b).
Provided that Attorney Pollack does not participate in the division of
profits from any such work, other firm attorneys are not prohibited from
appearing before DPHAS in the year after he leaves the CMEB. See State Ethics Commission Advisory Opinion
No. 89-13, 50
However, if Attorney Pollacks firm is a business with which he is associated (e.g., he is a partner or shareholder of five percent or more of the outstanding stock of any class), then while Attorney Pollack is a member of the CMEB, the firm should refrain from any representation before the CMEB or any representation at the DPHAS involving a DPHAS employee who might work with Attorney Pollack in his official capacity. The Code prohibits use of office not only for ones individual financial gain but also for the financial gain of a business with which one is associated. Conn. Gen. Stat. §1-84(c). Therefore, the reasoning which applies to Attorney Pollack applies with equal force to his law firm. In contrast, the revolving door laws are personal to the individual and do not extend to his business.
Finally, both Attorney Pollack and his firm may currently provide representation before other DPHAS employees or on other DPHAS matters, provided that these individuals and matters are clearly unrelated to the CMEB. Of course, as discussed above, such representation by Attorney Pollack will be prohibited for a year after he leaves the CMEB.
By order of the Commission,
R.E. VanNorstrand
Chairperson