Advisory Opinion No. 2003-12
Application Of
The Code To The Business Interests Of A Candidate
For The Office Of Secretary Of State
Richard F. Orr, Vice President and General Counsel for Barakos-Landino, Inc. (BL), acting on behalf of BLs President, Robert A. Landino, PE, has asked the State Ethics Commission for an advisory opinion. Specifically, Attorney Orr wishes to know: is there any legal restriction which would prevent Mr. Landino from being a candidate for, and serving as, Connecticuts Secretary of State (SOS); and, if elected, would any changes be required in his business activities?
As background, Attorney Orr has provided a detailed overview of BLs, and its affiliates, business activities. To summarize:
Mr. Landino is the 100% owner of all of the BL Companies with
one exception; he has a partner in a company which provides architectural
services and related building engineering;
Mr. Landino previously served, from February, 1995 to January,
2001, as a state representative. Before
commencing said service, Mr. Landino sought an
opinion from the Commissions staff and was informed that his business did not
need to forfeit any state contracts it had at the time, nor was it forbidden
from seeking additional state work.
Nonetheless, during his terms in office, Mr. Landino
chose not to seek new state contracts; Since the
completion of his legislative service, BL has sought and obtained contracts to
do work for In addition to working for state agencies, BL
works with clients that have matters pending before state agencies. For example, BL may prepare and submit
applications on behalf of such clients to state agencies including: the Department of Environmental Protection
(DEP), DOT, the State Traffic Commission (STC), the Department of Public Health
(DPH), and the Liquor Control Commission (LCC); At the
municipal level, BL presently has contracts with, and is doing work for, a
number of Finally,
Mr. Landino has various other business
interests. For purposes of this opinion,
Attorney Orr asks that the Commission assume Mr. Landino
is the majority or sole owner of these business; i.e., that they
are each a Business with which he is associated as that term is defined in
The Code Of Ethics For Public Officials.
See, Conn. Gen. Stat. §1-79(b). These miscellaneous businesses include: a copying and reprographic company, the BL
headquarters building; land in proximity to the headquarters, and a land
development company. To
comprehensively address Attorney Orrs two questions, he has asked that the
Commission discuss the application of the following Code provisions: Conn. Gen. Stat. §§1-84(a) (1-85), 1-84(c),
1-84(d), 1-84(i), 1-84(l), 1-96(e) and 1-97(a). Taking these Code provisions in turn: Subsection
1-84(a), as limited by §1-85, defines a substantial, and prohibited, conflict
for purposes of the Ethics Code. In
essence, a public official has a substantial conflict of interest if he, his
immediate family or an associated business will derive a direct monetary gain
by reason of his official activity. A
substantial conflict does not exist, however, if the gain accrues to no greater
extent than to other members of the affected profession, occupation or group. Attorney
Orr states that neither Mr. Landino nor any of his
businesses will seek work from the Office of the SOS. Given this fact and given that any
interaction with the Office would be ministerial in nature (e.g. corporate
registration) the possibility of a substantial conflict in this instance
appears essentially nil. The Commission
wishes to note, however, that a public official/executive heads decision not
to seek business with his agency is obligatory, not discretionary. Specifically, under §1-84(i)
of the Code, no executive head of an agency or quasi-public agency, or member
of his immediate family or an associated business, may enter into any contract
with that agency or quasi-public agency. Subsection
1-84(c) prohibits use of public office or position, or confidential state
information, for the financial benefit of the official, specified relatives, or
an associated business. Attorney Orr
states that Mr. Landino is aware of and will fully
comply with the prohibition on use of confidential information. He asks, however, whether the §1-84(c) use of
office prohibition will bar Mr. Landinos businesses
from working for other state agencies, appearing before other state agencies, or
working for or appearing before municipal agencies? In general,
§1-84(c) does not create a per se prohibition on the above
enumerated business activities: provided
the official does not exercise regulatory or contractual authority over the
work in question; and provided the official, in his business efforts, avoids
any use whatsoever of the power and influence of his office. With regard to state representation and state
work, however, further restrictions are required pursuant to Conn. Gen. Stat.
§§1-84(d) and (i), discussed infra. With
exceptions not pertinent, §1-84(d) enumerates 13 state agencies, boards and
commissions before which a public official and his businesses cannot appear for
compensation on behalf of a client. By
its terms, §1-84(d) applies only to
a partnership, association, professional
corporation or sole proprietorship
Applying this provision to Mr. Landino and the
BL Companies, Attorney Orr states that Mr. Landino
will not personally appear before any §1-84(d) entity while serving as
SOS. Attorney Orr further states that
none of the companies which comprise BL Companies is a partnership,
association, professional corporation or sole proprietorship. Given this fact,
§1-84(d) will not prohibit the BL Companies from continuing to represent
clients before the listed agencies. In response
to Attorney Orrs additional concerns in this area, no Code section would
prohibit BL from representing clients before state agencies not listed in
§1-84(d) or before municipal agencies. Again with
exceptions not pertinent, §1-84(i) requires that if a
public official or his business wishes to contract with the State, it must be
done through an open and public process, including prior public offer of the
contract opportunity and subsequent public disclosure of the contract
award. Provided these provisions are
followed, §1-84(i) will not prohibit the BL Companies
from seeking additional state contracts.
Furthermore, no provision of the Code would require BL to forfeit any of
its current state work. Similarly, no
Code section would affect BLs ability to carry out current, or seek new,
municipal work, including work that is state funded. With regard
to §1-84(i), Attorney Orr has also asked whether BL
may seek and obtain work that is originally awarded pursuant to the open and
public requirements of the Code, but subsequently performed on an on call
basis. The answer is yes. However, Mr. Landino
and all those involved on behalf of the State should be scrupulous to insure
that the subsequent on call designations are made in a fair and objective
manner consistent with clear, previously established, standards. Pursuant to §1-84(l) no public official may influence, direct or
solicit existing or new lobbying contracts, agreements or business relationships
for or on behalf of any person.
Attorney Orr advises that while no BL Company currently is registered as
or retains a lobbyist it may wish to do so in the future. If so, he inquires whether §1-84(l) would prohibit
Mr. Landino, while serving as SOS, from participating
in the decision to hire or fire, a communicator lobbyist. In the Commissions opinion, it would
not. Simply stated, §1-84(l) was never
intended to extend to such a scenario.
Rather, the provision was enacted, and will be administered, to prohibit
a public official from steering other individuals and entities to or away
from particular lobbyists. Finally,
§1-97(a) of The Code Of Ethics For Lobbyists prohibits
any registered lobbyist from giving a gift to a public official and §1-96(e) of
the Lobbyist Code requires lobbyists to report any allowable expenditure for
the benefit of a public official. As a
consequence of these provisions, and assuming a BL Company was registered as a
lobbyist, Attorney Orr wishes to know whether any payments to Mr. Landino, as profits, salary or expenses, would constitute a
prohibited gift or reportable expenditure.
In neither case would the Lobbyist Code apply. Rather, such transactions are explicitly
exempted from the Codes definition of Gift and do not constitute a
reportable lobbyist expenditure. See
Conn. Gen. Stat. §1-91(g) (15). See
also, Advisory Opinion No. 83-3,
44 CLJ No. 35, p. 5B ( Before
summarizing its advice, the Commission believes it important to take up one
additional issue. Pursuant to Conn. Gen.
Stat. §§ 9-3 and 4, the SOS, by virtue of the Office, is the Commissioner of
Elections of the State with certain enumerated duties (e.g.,
examination and approval of nominating petitions, §9-4 at (12)). As a consequence, it is possible that, as
SOS, Mr. Landino would be required to make a
substantive decision regarding an election in, for example, a municipality with
which his firm had a contractual relationship.
Admittedly, the likelihood of such an occurrence is both remote and
unforeseeable. Nonetheless, if a
potential conflict of this nature were to arise, the SOS should seek additional
guidance from the Commission. In summary, no provision of The
Codes Of Ethics would prohibit Mr. Robert A. Landino from being a candidate for, or serving as, By order of the Commission,
Chairperson