Advisory Opinion No. 2003-11
Advisory Opinion No. 2003-11
Application Of §1-84b(f) Of The Ethics Code To The Executive Director
Of The Arts Commission
Douglas
Evans, Executive Director of the Connecticut Commission on the Arts (Arts
Commission), has requested an advisory opinion regarding his post-state
employment. Specifically, Mr. Evans
wishes to know whether, consistent with the post-state employment provisions of
The Code Of Ethics For Public Officials, he may accept
a position with Connecticut Public Broadcasting (CPB) commencing this August.
With
exceptions not pertinent, the relevant Code provision reads as follows:
No former
public official or state employee who participated substantially in the
negotiation or award of a state contract valued at an amount of fifty thousand
dollars or more . . . or . . . who supervised the negotiation or award of such
a contract . . . shall accept employment with a party to the contract . . .
other than the state for a period of one year after his resignation from his
state office or position if his resignation occurs less than one year after the
contract . . . is signed. Conn. Gen.
Stat. §1-84b(f).
During the
past year, the Arts Commission has awarded the following two contracts to
CPB: 1. a $641,614 grant for the HOT
Schools Program (later reduced to $511,000), signed August 19, 2002; and 2. a
$50,000 grant for the CULTURE CONNECT Program, signed January 7, 2003.
The HOT (Higher Order Thinking) Program develops skills in young people
through the arts; and the CULTURE CONNECT Program establishes a web-based
cultural events calendar for Connecticut.
On its face, the HOT Contract is in
excess of one-half million dollars. However, a closer examination of the underlying documentation reveals
that, in fact, CPB received only a $30,000 management fee, with the remainder
of the funds being passed through to other entities and individuals. Under these circumstances, the Ethics
Commission does not believe it is necessary, or fair, to utilize the total
amount of the grant for purposes of §1-84b(f). Alternatively, the Commission finds that the
contract award to CPB was $30,000; and, hence, falls below the statutory
$50,000 threshold.
The CULTURE CONNECT Contract is,
however, more problematic. In this
instance, it is unarguable that the entire amount of the grant went to
CPB. While the contract amount, $50,000,
is the absolute minimum set forth in §1-84b(f); it is,
without question, legally sufficient to require the application of the
statutory prohibition.
Furthermore, as noted supra,
the contract date (January 7, 2003) falls squarely within the last year of
Mr. Evans state service. In this
regard, the Commission takes cognizance of Mr. Evans assertion that the grant
was actually issued on September 19,
2002, and that paperwork delays resulted in the January 7, 2003 signing date. However, by its terms, §1-84b(f)s
operation is explicitly premised on the date the contract . . . is
signed. See also,
Advisory Opinion No. 93-16, 55 CLJ No. 6,0 p. 6C (8/10/93) wherein the Commission held: that the date the State accepted a contract
by signing the document is the operative date for purposes of §1-84b(f).
Finally, the Commission cannot
accept Mr. Evans position that he did not participate substantially in the
negotiation or award of this contract because: there was essentially no negotiation in this instance; and the award can
be made only by the Arts Commission. To
the contrary, the State Ethics Commission finds that the Executive Directors written
recommendation of approval to the citizen members of the Arts Commission
clearly constitutes substantial participation in the award of the contract in
question.
In summary, given that Mr. Evans
has substantially participated in the award of a contract valued at $50,000 to
CPB during his last year of state service, he may not, for one year after his
resignation, accept employment with that entity or either an employee or
independent contractor.
By order of the Commission,
Rosemary Giuliano
Chairperson