Advisory Opinion No. 1999-23

Application Of The Code Of Ethics To The Retention Of Real Estate Broker
Or Appraiser Licenses By Consumer Protection Real Estate Examiners

James T. Fleming, Commissioner of the Department of Consumer Protection ("DCP), has asked the State Ethics Commission whether Real Estate Examiners employed by DCP to investigate consumer complaints and to perform other related regulatory and licensing activities over the real estate industry are permitted to hold a license as a real estate broker or appraiser during their tenures as state employees under the provisions of the Code of Ethics for Public Officials (the "Code.") Commissioner Fleming points out that the DCP’s practice has been to prohibit its Real Estate Examiners from holding such licenses to avoid even the slightest appearance of a conflict of interest. However, the Commissioner also indicates that in a number of recent cases, the DCP’s ability to perform its statutory responsibilities would be enhanced by having licensed professionals on its staff who could review certain cases.

Under Conn. Gen. Stat. §§1-84(b) and (c), no state employee may accept outside employment which will impair independence of judgment as to state duties or require or induce disclosure of confidential state information, nor may such an individual use his or her state position or confidential information acquired through state service to obtain personal financial gain. Pursuant to these provisions, the Commission has consistently held that conflicts of interest, both real and apparent, are inevitable and unavoidable when a state servant directly responsible for regulating a field of private endeavor seeks to be employed in that same field. State Ethics Commission Advisory Opinion No. 93-21, 55 Conn. L.J. No. 29, P. 3D (January 18, 1994); see also, Regulations of Conn. State. Agencies §1-81-17.

The Commissioner has indicated that if in fact a DCP Real Estate Examiner were permitted to hold such a license under the terms of the Ethics Code, he or she would under no circumstance be permitted to utilize the license for outside employment. Such a precondition to holding the license by these employees prevents them from violating §§1-84(b) and (c) of the Code, as there would be no simultaneous employment by the employee in the industry he or she oversees. Rather, under the facts of this matter, the sole purpose of licensing the employee is to enhance his or her ability to serve the state. Accordingly, with the foregoing safeguard in place, the subject employees may hold the licenses in question without breaching any Code provision.

By order of the Commission,

Stanley Burdick,
Charperson