Advisory Opinion No. 1999-12
Application Of Code Of Ethics For Public Officials To Members
Of The Children’s Trust Fund Council
Karen Foley-Schain, Executive Director of the Children’s Trust Fund ("Fund"), has asked how the Code of Ethics for Public Officials, Conn. Gen. Stat. §1-79 et seq., applies to members of the Children’s Trust Fund Council ("Council"). The Council oversees the administration of approximately $3.5 million in contracts and grants to public and private non-profit organizations.
Each member of the sixteen-person Council is either a Commissioner of a state agency, or a member appointed by a legislative leader. Conn. Gen. Stat. §17a-50(b). Therefore, each member is considered a public official under the Code of Ethics. Conn. Gen. Stat. §1-79(k). The Council’s enabling statute specifies that each appointed member must demonstrate a particular expertise (i.e., "representative of business with experience in fund-raising," "parent," "person with expertise in child abuse prevention," "a staff member of a child abuse prevention program," and "a pediatrician.") §17a-50(b). Two of the current members of the Council are also directors of programs which have entered into ongoing contracts with the Fund. One program receives funds for five separate activities, totaling over $130,000. The other program receives funds for two separate functions, totaling over $300,000.
The enabling statute for the Council is similar to many of the enabling statutes for various Connecticut quasi-public agencies in that the statutory language specifies that its members must have particular backgrounds and expertise. Unlike the quasi-public agency statutes, however, the Council’s statute does not contain an exemption from certain conflict of interest provisions of the Code of Ethics. ( See, for example, Conn. Gen. Stat. §32-35(e) of the enabling statute for Connecticut Innovations, Incorporated: "Notwithstanding the provisions of any other law to the contrary, it shall not constitute a conflict of interest for a trustee, director, partner or officer of any person, firm or corporation, or any individual having a financial interest in a person, firm or corporation, to serve as a member of the board of directors of Connecticut Innovations, Incorporated, provided such . . .individual shall abstain from deliberation, action or vote by Connecticut Innovations, Incorporated in specific respect to such person, firm or corporation.") Therefore, as public officials not otherwise exempt from the application of the Code of Ethics, the Council members are subject to all of the Code’s conflict of interest sections.
For example, Council members must not use their position, or any confidential information received as a result of that position, to obtain financial gain for, among others, themselves or a business with which they are associated, even if that use of position is inadvertent or unintentional. Conn. Gen. Stat. §1-84(c). Therefore, if the Council is considering funding for a program which employs one of the Council members, that member must abstain from any participation in the matter, including discussions, votes or any other action.
Also, under the Code, a public official may not accept outside employment that impairs his or her independence of judgment as to his or her official duties. Conn. Gen. Stat. §1-84(b). Therefore, the two Council members who are also employed by agencies under contract with the Council should not vote or take other action on matters affecting competitors of their employer agencies.
Furthermore, if the Council is vying for funding at the Legislature, and is in direct competition with private agencies for that funding, a Council member who is also a director of a private agency is placed in the inappropriate position of arguing against funding the Council in order to further his or her private employer’s interests. Under these circumstances, the Council member/private agency employer must either refrain from seeking the funding, or resign from the Council.
An additional problem is raised under §§1-84(b) and (c) if Fund employees, who must answer to the Council, are required to oversee the contracts held by the agencies which are run by Council members in their private capacities. These Fund employees would be placed in the untenable position of auditing the financial dealings and day-to-day operations of their own supervisors, i.e., the Council members who are also directors of private agencies. See Advisory Opinion No. 94-16, 56 Conn. L. J. 11, p. 2B(9/13/94) (Attorney member of Connecticut Medical Examining Board may not accept private casework subject to CMEB’s jurisdiction, since that work means negotiating with agency attorneys who must then appear before him in his official capacity.)
In summary, if a Council member’s private agency is in direct competition with the Fund for state funding, or Fund subordinates are required to oversee a member’s outside work, then that member should resign his or her Council position. Even if these potential problems do not exist, if the voting restrictions enumerated above require a Council member to recuse himself or herself so frequently that he or she is unable to properly perform his or her official duties as a participating member, that individual should also resign from the Council.
By order of the Commission,
Stanley Burdick,
Chairperson