Advisory Opinion No. 1996-9

Application Of Conn. Gen. Stat. §§1-84b(b) And (c)
To Employees Of The Office Of Consumer Counsel

(Note: this opinion was overturned, in part, by Advisory Opinion 2009-1)

Brenda Bergeron, Ethics Commission staff attorney, has asked how §1-84b(c) and §1-84b(b) of the post-state employment rules of The Codes Of Ethics apply to the staff of the Officer of Consumer Counsel (OCC).

Pursuant to Conn. Gen. Stat. §1-84b(c), certain executive branch public officials and state employees who held a designated position in a regulatory agency shall not, within one year after leaving state service, accept employment with a business subject to regulation by that agency.  The regulatory agencies covered by this restriction are enumerated in §1-84b(c).

One of the agencies listed in §1-84b(c) is the Department of Public Utility Control, including the Division of Consumer Counsel.  See, also, Regulations of Connecticut State Agencies, §1-92-40a.  The authority to designate specific positions in the listed agencies has been delegated to the State Ethics Commission in consultation with the agency concerned.  Conn. Gen. Stat. §1-84b(c).  To be so designated, the position must involve the exercise of significant decision-making or supervisory responsibility.  Id.  Pursuant to this criterion, by regulation, the Commission has designated some 75 positions in the regulatory agencies.  However, regarding the OCC specifically, it has designated only the most senior position, the Consumer Counsel.  All other employees of OCC are not subject to the stringent restrictions contained in §1-84b(c).

Conn. Gen. Stat. §1-84b(b) prohibits a former state employee, for one year after leaving State service, from representing anyone, other than the State, for compensation before his former agency concerning a matter in which the State has a substantial interest.  This provision was enacted to prevent a former public official or state employee from exerting undue influence over his former agency.  See, The Code Of Ethics Study Committee Report To The General Assembly, at p. 21 (1983).

The OCC’s primary role is to serve as the independent professional advocate for the interests of ratepayers in administrative hearings, court appeals and other proceedings.  Conn. Gen. Stat. §16-2a.  Such work, however, emanates from activity at the DPUC and requires extensive interaction on substantive issues.  Although the OCC is within the DPUC for administrative purposes only, it has access, with limited exceptions, to all records and information available at DPUC, is entitled to the assistance of DPUC and its experts, and has the benefit of all its facilities.  Conn. Gen. Stat. §§16-2a(a), 16-2a(b).

As a result of this statutory framework, the opportunity clearly exists for the development of contacts between colleagues at the two entities.  Consequently, the one year “cooling off” period mandated by §1-84b(b) must be applied to the DPUC and the OCC as one agency in order to prevent these contacts from being used to obtain improper, preferential treatment.  Compare, Advisory Opinion No. 91-21, 53 Conn. L.J. No. 11, p. 3C (September 10, 1995) (Commission on Hospitals and Health Care deemed separate agency from the Department of Health Services for purposes of the post-state employment rules when no interaction on any substantive issues is present).  See, also, Conn. Gen. Stat. §16-2a(c) which recognized the relationship between the DPUC and the OCC by providing for a specific prohibition on the Consumer Counsel, for one year after terminating his state service, participating in any matter or appearing, for compensation, before the Public Utilities Control Authority.  Finally, and most importantly, the Legislature specifically endorsed this interpretation for purposes of the post-state employment provisions of the Code when it enacted §1-82b(c) and approved regulations designating the Consumer Counsel as one of the §1-84b(c) positions.  Therefore, for purposes of Conn. Gen. Stat. §1-84b(b), the former agency for OCC employees is the entire DPUC, including the OCC.

Finally, Attorney Bergeron has asked whether the rules might be different for an employee who is considered to be a durational project manager at OCC.  According to officials at the Personnel Division of the Department of Administrative Services, in general, a durational project manager would be considered to be an unclassified state employee of the agency to which they were assigned.  Furthermore, the compensation for a durational project manager at the OCC would be paid for out of the OCC budget.  Therefore, any durational employees assigned to OCC will be considered OCC employees for purposes of the Code of Ethics for Public Officials.

By order of the Commission,

David T. Nassef
Chairperson