Advisory Opinion No. 2003-18
Advisory Opinion No. 2003-18
Application Of The Conflict Of Interest
Provisions Of The Code Of Ethics
To Members
Of The Waterbury
Financial Planning And Assistance Board
Michael J. Cicchetti, the
designated Chairman of the Waterbury Financial Planning and Assistance Board
(the Board), has asked the State Ethics Commission whether or not certain members
of the Board have a conflict of interest.
The Board was established by
Special Act No. 01-1. In essence,
responding to a financial emergency, the General Assembly created and empowered
the Board to oversee the financial affairs of the City of Waterbury. Id.
at §1. The Board is composed of the
Secretary of the Office of Policy & Management or his designee, who shall
serve as the Chairman, the State Treasurer or her designee, the Mayor, and four
members appointed by the Governor, one of whom is a resident of Waterbury, one
of whom is affiliated with a business located in Waterbury, one of whom has
expertise in finance and one of whom shall be the chief executive officer of a
bargaining unit representing employees of the City. Id.
at §10(a). A majority of the voting
membership of the Board shall constitute a quorum and the Board shall act by
the majority vote of the voting membership Id.
at §10(b). As part of its powers, the
Board may decide, after appropriate hearings, which provisions will be included
in an approved or awarded collective bargaining agreement and which will
not. Id.
at §11(4)
Chairman
Cicchettis preeminent concern centers on the question of whether the
individual who serves as the representative of organized labor may participate
when the Board considers the collective bargaining agreement which governs his
terms and conditions of employment?
The
individual in question, Mr. Jack Cronan, has been the representative of
organized labor on the Board since its inception. Mr. Cronan is also President of the Waterbury
Teachers Association (WTA), a local union of the Connecticut Education
Association which conducts collective bargaining activities on behalf of all of
Waterburys certified
teachers. He has also been a teacher in
the Waterbury school system for
over 20 years.
On or
before December 2, 2003,
the WTAs contract will be presented to the Board for approval, or for
arbitration pursuant to the Special Act. See, §11(5) of Special Act 01-1.
Given Mr. Cronans position and tenure as a teacher, the terms of any
new collective bargaining agreement will affect his economic interests,
including his potential retirement benefits.
Based on this set of circumstances, Chairman Cicchetti wishes to know
whether Mr. Cronan may take part in strategy and negotiation sessions of the
Board; and, when the contract is submitted for approval or arbitration, be able
to vote on the agreement or on any related issue that may be considered by the Board.
The
relevant conflict of interest provisions of the Code in this instance are Conn.
Gen. Stat. §§1-85 and 1-86. Pursuant to
§1-85, in pertinent part, a public official has a substantial conflict of interest
and may not take official action on a matter if he has reason to believe or
expect that he will derive a direct monetary benefit or suffer a direct
monetary loss by reason of his official activity. The official does not, however, have a
substantial conflict of interest if any benefit or detriment accures to him as a member of a profession, occupation or
group to no greater extent than any other member of such profession, occupation
or group.
Pursuant to
§1-86, in pertinent part, a public official has a potential conflict of
interest if he would be required to take official action that would affect his
financial interests, unless such interest is de minimis in nature
or not distinct from that of a substantial segment of the general public. If confronted with a potential conflict, a
member of a board, such as Mr. Cronan, has two
alternatives. He may either recuse
himself from the matter; or prepare a written statement, signed under penalty
of false statement, describing the matter requiring action and the nature of
the potential conflict and explaining why, despite the potential conflict, he
is able to vote and participate fairly, objectively and in the public interest.
In applying these conflict of
interest provisions to the question posed, the Commission believes it is
essentially unarguable that Mr. Cronan has a direct, foreseeable financial
interest at stake in the negotiation and approval of the WTA contract. The issue to be determined, pursuant to
§1-85, thus becomes whether the exception for benefits which accure as a member of a profession, occupation or group
applies in this instance.
It strains logic to classify the
WTA as comprising an entire profession or occupation. Therefore, it must be decided whether it
qualifies as a group under the statutory language. In making this determination, the Commission
turns to the applicable canon of statutory construction: the
ejusdem generis rule. In essence, this aid states that in the
construction of laws where a general word, e.g. group, follows
an enumeration of words of more specific meaning e.g., profession or occupation the general
word should be construed in a manner consistent with the more specific
terms. Applying this tenet, the
Commission, in the past, has declined to classify a single business entity (e.g.
corporation or union) as a group.
See,
State Ethics Commission v. Mazza (Docket No. 89-2):
wherein the Commission ruled that the stockholders in a specific bank
did not constitute a group for purposes of §1-85.
The matter under review is,
however, distinguishable. Specifically,
in this instance the relevant geographical area is limited to the City of
Waterbury, and, in this limited context, utilizing a quantitative analysis, the
Commission finds that all certified teacher/union members in the City are a
group equivalent to other professions or occupations practicing in that
locale. (For example, according to the
States Department of Health there are 243 licensed physicians in Waterbury. By comparison, according to the Connecticut
Education Association, there are 1,347 certified teachers in Waterbury.)
As a
consequence of this analysis, the Commission finds that Mr. Cronan does not
have a substantial conflict of interest under §1-85.
Turning
to §1-86, the Commission reiterates its finding that official action by the
Board regarding the WTA contract will unquestionably affect a financial interest
of Mr. Cronan as that term is used in the statute. The Commission further finds that such effect
will not be de minimis (i.e., less than $100 gain or loss
in a year) See,
Regulations of Conn. State Agencies §1-81-30(a). Finally, the Commission finds that the
interests of the WTA membership are not those of a substantial segment of the
general public as that term is used in the statute.
See, §1-81-30 at (b): A substantial segment of the general public
is greater than ones profession, occupation, or group
Consistent with the
commonly understood usage of the term, a substantial segment of the general
public is a considerable or large part
e.g., all licensed drivers, all
homeowners, all parents, etc.
Given
these findings, it is the Commissions conclusion that Mr. Cronan does have a
potential conflict under§1-86 of the Code.
As detailed supra, pursuant to the statutory procedure Mr. Cronan
may, under these circumstances, either abstain from participation in the
Boards consideration of the WTA contract or may participate in the Boards deliberations
and vote after filing the requisite §1-86 statement. Most importantly, the Commission advises and
Mr. Cronan concurs that any §1-86 statement prepared
by him must include an explicit agreement not to take part, as Union President,
in the WTAs sessions regarding the pending
contract. Absent such an agreement, Mr. Cronans participation in the Boards strategy and
negotiation sessions would place him on both sides of the issue; and risk
impermissible use of confidential information, however inadvertently, in
violation of §§1-84(b) and (c) of the Code.
The
Commission believes its holding that Mr. Cronan should be permitted to
participate in consideration of the WTA contract is further supported by the
statutory framework of Special Act No. 01-1.
Specifically, as previously noted, the Act denominates that one of the
Board members be the chief executive of one of the Citys employee unions; and,
at the same time, gives the Board authority to approve or reject all collective
bargaining agreements for these unions.
As the Commission has long held, when the General Assembly appoints an
individual to an office where such an inherent conflict exists, the Legislature
is, in essence, making a policy determination that the individuals specific
experience and expertise outweigh the potential conflicts.
See, e.g., Advisory Opinion No.
80-20, 42 CLJ 26, p. 21 (December 23,
1980).
Lastly,
the Commission turns to Chairman Cicchettis subsidiary questions. Specifically, he asks whether two other Board
members, each of whom has one or more adult children who are WTA members, have
conflicts of interest under the Code; and whether he has a personal conflict,
since his aunt is a WTA member. Given
that §1-86 extends to ones children, whether dependent or not, each of these two
Board members should also act pursuant to §1-86 by recusing
themselves or filing the necessary disclosure statement. With regard to the Chairman, the §1-86
provision does not extend to ones aunt; and he, therefore, has no conflict
under the Ethics Code.
By order of the Commission,
Rosemary Giuliano
Chairperson