Advisory Opinion No. 2001-1
Application Of Code Of Ethics For Public Officials To Members Of Underground Storage Tank Petroleum Clean-Up Fund Review Board
Richard Barlow, Vice-Chairperson of the Underground Storage Tank Petroleum Clean-up Fund Review Board (the "Board"), has asked how The Code Of Ethics For Public Officials, Conn. Gen. Stat. §1-79 et seq., applies to several situations involving the Board. The Board is established by statute within the Department of Environmental Protection to review and approve, if appropriate, applications for reimbursements and payments from an account set up to assist in the clean-up of petroleum tanks. Conn. Gen. Stat. §22a-449d. Members of the Board include individuals appointed by leaders of the General Assembly and by the Governor. Therefore, Board members are considered public officials subject to the Code of Ethics. Conn. Gen. Stat. §1-79(k).
The first situation raised involves an individual appointed as a public member of the Board, who is also an attorney in private practice. According to Mr. Barlow, the facts are as follows: the attorney/Board member requested that a particular claim application be given priority. An original claim had previously been submitted on behalf of this claimant by the attorney/Board member before he became a member of the Board. He also had represented the claimant in a related court action that resulted in a judgment on which this second claim before the Board was based. When that claim was heard by the Board, the attorney/Board member did not participate. A second attorney/Board member also abstained, since he had represented another party in the same court action. At the hearing before the Board, the claimant was represented pro bono by yet another attorney.
The Code of Ethics does not contain a blanket prohibition against the outside employment of public officials, but it does contain restrictions on that employment, even when the official is serving in a part-time capacity. For example, the Code prohibits a state employee or public official from using his office or position, or confidential information gained in state service, for personal financial gain, however inadvertent that use might be. Conn. Gen. Stat. §1-84(c). Also, a state employee or public official may not accept outside employment that would impair his independence of judgment with regard to his state duties. Conn. Gen. Stat. §1-84(b).
In applying these rules to a member of a state regulatory board, the Commission has previously held that, under Conn. Gen. Stat. §1-84(b), an attorney/member of the Connecticut Medical Examining Board ("CMEB") should not represent anyone "with regard to an investigation which might ultimately be resolved by that board." See State Ethics Commission Advisory Opinion No. 94-16, 56 Conn. L. J. No.11, p.2B (9/13/94). In that opinion, the Commission also referred to a line of previous opinions in concluding that the attorney’s 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 State Ethics Commission Advisory Opinion No. 94-16, supra, as well as Advisory Opinion No. 97-9, 58 Conn. L.J. No.48, p.3D (5/27/97) (CHRO officer may not engage in practice of law before CHRO.)
Finally, the Commission concluded that if the attorney/CMEB member’s law firm was a business with which he is associated as that term is used in the Code of Ethics (e.g., he was a partner or shareholder of five percent or more of the outstanding stock of any class), then while he was a member of the CMEB, his firm should refrain from any representation before the CMEB. This was so, the Commission stated, because the Code "prohibits use of office not only for one’s individual financial gain but also for the financial gain of a business with which one is associated . . .Therefore, the reasoning which applies to [the attorney/CMEB member] applies with equal force to his law firm." See Advisory Opinion No. 94-16, supra, as well as Advisory Opinion No. 98-12, 59 Conn. L. J. No.46, p.5D (5/12/98) (Neither Workers Compensation Commissioner nor his law firm could appear before Commission during his tenure as Commissioner.)
Applying the law and Commission precedent to the first set of facts presented, there is an inherent conflict of interest under the Code of Ethics for an attorney involved in a particular matter to take action when that matter is scheduled for Board consideration. For all the reasons cited by the Commission in the CMEB opinion, however admirable his intentions, the attorney/Board member cannot avoid the conflict of interest by recusing himself from final Board action if he has been involved in the case through its previous stages. Therefore, this attorney/Board member should not have asked for a scheduling change for his client.
The fact that an attorney/Board member may have a longtime client with an isolated issue subject to the Board’s jurisdiction does not preclude that attorney from serving on the Board. In such a situation, recusal is the appropriate remedy. By contrast, if an attorney/Board member has or acquires so many clients in the field regulated by the
Board that the member must "recuse himself so frequently that he is unable to perform his official duties as a participating member, that individual should resign" from the Board or relinquish his clients. See Advisory Opinion No. 99-12, 61 Conn. Law J. 2, p. 5C (7/13/99) (Members of Children’s Trust Fund Council who work for agencies vying for funding from Council must abstain from certain actions, and should resign from Council if recusal is so frequent that official duties cannot be performed adequately.) In any event, although an attorney may have clients that pre-date his Board membership and those clients may have isolated issues before the Board, once the attorney has accepted a position on the Board, he should not accept a case in his private practice which he knows must be resolved by the Board, since his "effectiveness, if not his impartiality, as a [Board] member would most certainly be jeopardized by his acceptance of private casework subject to the [Board’s] jurisdiction." See Advisory Opinion No.94-16, supra.
The same reasoning applies to the attorney/Board member who is the subject of the second scenario presented by Mr. Barlow. In this instance, an attorney/Board member submitted a letter, dated June 20, 2000, on behalf of his private practice clients to an employee of the Board. In that letter, the attorney/Board member cites his client’s position regarding a claim which had apparently been paid by the Board, and over which there appears to be an ongoing dispute, and states in part: "I would ask that you look into this matter immediately and advise me as to the State’s position." This letter presents a conflict of interest on the part of the attorney/Board member. In Advisory Opinion No. 94-16, this Commission considered the problems raised when a Board member interacts in his paid, private capacity with staff members of the Board on which he sits. In that case, the Commission held that it would be an inappropriate use of office in violation of Conn. Gen. Stat. §1-84(c) for the attorney/CMEB member to negotiate matters with state employees who might appear before him in his decision-making capacity at the CMEB. The same reasoning applies here, perhaps with even greater strength if the employee who received the letter is an employee of the Board itself.
In his response, the attorney/Board member who is the subject of this second question has asked the Commission whether a Board member is barred from finding out the status of an ongoing clean-up, or from informing the Board of an underground petroleum tank release. Of course, this Ruling does not prevent a Board member in his capacity as a citizen of the State from inquiring about the status of a clean-up or informing the Board of a potential problem. If, for example, a Board member lived near a gas station, and suspected that a leak had occurred, it would be appropriate for him to inform the Board. What is prohibited is representing a client for compensation before the Board on which the attorney sits.
The third question asked by Mr. Barlow raises an issue that is present whenever the Legislature specifically designates the expertise which an individual must have in order to sit on a particular state board. Under Conn. Gen. Stat. §22a-449d, one Board member is required by statute to be experienced in the delivery, installation, and removal of residential underground storage tanks and the remediation of contamination from such tanks. The Board member currently occupying this seat on the Board indicates that although he does do some remediation work, that work represents less than one tenth of one percent of the revenues of his business. This Board member must abstain, as it appears he has, from any action on any matter involving his business, but he may continue to serve provided that his abstentions are not so frequent or numerous that he cannot adequately function as a Board member. His situation is distinguishable from the attorney/Board members in the first two scenarios, one of whom serves as a public member, and the other as a representative of the Connecticut Gasoline Retailers Association. See Advisory Opinion No. 80-20, 42 Conn. L. J. No.26 (12/23/80) (Conflict of interest exists where member of State Alcohol and Drug Abuse Commission serves as director of community agency receiving funding from Commission. Although Department of Correction ("DOC") also receives funding from Commission, it is not a conflict of interest for DOC Commissioner to serve as ex officio member, since DOC seat on Commission is mandated by statute.)
In conclusion, a member with expertise specifically designated by statute may serve on the Board without violating the Code of Ethics. Similarly, a Board member who is also an attorney may serve on the Board, even if, on isolated occasions, a client of the attorney or his firm appears before the Board, provided that his recusals are not so frequent that he is unable to perform his official Board duties properly.
By order of the Commission,
Rosemary Giuliano
Chairperson