ADVISORY OPINION 2007-16

Definition of “Department Heads” for Purposes of General Statutes § 1-83 (a) (1)

INTRODUCTION

The Citizen’s Ethics Advisory Board issues this advisory opinion in response to being asked for a definition of the term “department heads” for purposes of General Statutes § 1-83 (a) (1).

BACKGROUND

            Section 1-83 (a) (1) mandates that

[a]ll state-wide elected officers, members of the General Assembly, department heads and their deputies, members of the Gaming Policy Board, the executive director of the Division of Special Revenue within the Department of Revenue Services, members or directors of each quasi-public agency, members of the Investment Advisory Council, state marshals and such members of the Executive Department and such employees of quasi-public agencies as the Governor shall require, shall file, under penalty of false statement, a statement of financial interests for the preceding calendar year with the Office of State Ethics on or before the May first next in any year in which they hold such a position.[1]

QUESTION

            We have been asked to define the term “department heads” for purposes of § 1-83 (a) (1). 

ANALYSIS

            The term “department heads” appears a single time in the Code and does so in § 1-83 (a) (1).  Although the term is not defined in that provision, or anywhere else in the Code, it is defined in Chapter 46 of the General Statutes, which is titled “State Appointive Officers.”  Specifically, under General Statutes § 4-5,

the term “department head” means Secretary of the Office of Policy and Management, Commissioner of Administrative Services, Commissioner of Revenue Services, Banking Commissioner, Commissioner of Children and Families, Commissioner of Consumer Protection, Commissioner of Correction, Commissioner of Economic and Community Development, State Board of Education, Commissioner of Emergency Management and Homeland Security, Commissioner of Environmental Protection, Commissioner of Agriculture, Commissioner of Public Health, Insurance Commissioner, Labor Commissioner, Liquor Control Commission, Commissioner of Mental Health and Addiction Services, Commissioner of Public Safety, Commissioner of Social Services, Commissioner of Mental Retardation, Commissioner of Motor Vehicles, Commissioner of Transportation, Commissioner of Public Works, Commissioner of Veterans' Affairs, Commissioner of Health Care Access, Chief Information Officer, the chairperson of the Public Utilities Control Authority, the executive director of the Board of Education and Services for the Blind, the executive director of the Connecticut Commission on Culture and Tourism and the Ombudsman for Property Rights.

            The question we must answer is whether the legislature intended to restrict the term “department heads,” as it is used in § 1-83 (a) (1), so as to embrace only those individuals listed in § 4-5, or whether it intended the term to have a broader reach.  Stated differently, we must determine whether, for example, the Executive Director of the Freedom of Information Commission, who is not listed in § 4-5, is a “department head” for purposes of § 1-83 (a) (1).    

            To answer that question, we return to 1980, at which time § 1-83 (a) spoke not of “department heads and their deputies” but rather of “commissioners” and “deputy commissioners.”  That is, § 1-83 (a) mandated that “[a]ll . . . commissioners, deputy commissioners . . . and such members of the executive department as the Governor shall require, shall file . . . a statement of financial interests for the preceding calendar year . . . in any year in which he holds such a position.”[2]  

            In light of that language, the Consumers Advisory Council asked the former State Ethics Commission (“former Commission”) whether its members were required to file annual Statements of Financial Interests, noting that “members of State boards and commissions often are considered to be ‘commissioners.’”[3]  The former Commission answered that question in the negative and, in doing so, adopted a more circumscribed interpretation of the term “commissioner.”[4]  Specifically, it stated that “‘commissioners’ and ‘deputy commissioners’ in section 1-83 (a) . . . should be interpreted to mean heads and deputy heads of departments in the Executive Branch of State Government.”[5]  It did so for the following reasons:   

·        Statements of Financial Interests under § 1-83 (a) are the successor to statements of economic interests filed in accordance with what was General Statutes § 1-76, under which “the only officials in the Executive Branch . . . who were required to file statements of economic interests were heads of executive departments and their deputies.”[6] 

·        The legislative history of § 1-83 (a) suggests neither dissatisfaction with past coverage nor an intent to expand its scope.[7]

·        The term “commissioner” in Connecticut statutes can mean “heads of departments and their deputies.”[8] 

·        The purpose of § 1-83 (a)—namely, to prevent or reveal conflicts of interest—“can be achieved by requiring disclosure by those who have ultimate responsibility in the executive departments plus by those individuals designated by the Governor because of the nature of their responsibilities.”[9]   

            Less than three years later, in an apparent attempt to bring the language in § 1-83 (a) into line with the former Commission’s limiting interpretation of the term “commissioner,” the legislature replaced “commissioners and deputy commissioners” with “department heads and their deputies,”[10] a change that has stood ever since.

            Subsequently, the legislature introduced to the Code the related term “executive head.”  In fact, the legislature placed it, among other places,[11] in extremely close proximity to its use of the term “department head.”  That is, it was placed in subpart (2) of § 1-83 (a), which states that each “state agency, department, board and commission” must create its own ethics statement, and that the “executive head of each such agency, department, board and commission” is responsible for the statement’s development and enforcement.  The use of the different terms, “department head” and “executive head,” within the same subsection “suggests that the legislature acted with complete awareness of their different meanings . . . and that it intended the terms to have different meanings . . . .”[12]  Indeed, it is apparent, we believe, that “department heads” represent a subgroup of the more general group of “executive heads” of state agencies, departments, boards, and commissions.

            It is also apparent, based on the foregoing, that the legislature intended to restrict the term “department heads,” as it is used in § 1-83 (a) (1), so as to embrace only those individuals listed in § 4-5.  If the legislature had intended the term to have a broader reach, it could have chosen the term “executive head of each state agency, department, board, commission,” as it did in the very next provision.  Because it did not, we conclude that the term “department heads” in § 1-83 (a) (1) means only those individuals listed in § 4-5.

            Thus, in answer to the question posed above, although the Executive Director of the Freedom of Information Commission is considered an “executive head” of a state commission for purposes of § 1-83 (a) (2), making her responsible for the development and enforcement of the commission’s ethics statement, she is not considered a “department head” for purposes of § 1-83 (a) (1), as her position is not listed in § 4-5.  That is not to say, however, that she is exempted from filing a Statement of Financial Interests.  Section 1-83 (a) (1) prescribes that “members of the Executive Department . . . as the Governor shall require” must file a Statement of Financial Interests.  And the current Governor’s standard requires the

filing of Annual Statements of Financial Interests by all persons in the Executive Branch and Quasi-Public Agencies who exercise (i) significant policy-making, regulatory or contractual authority; or (ii) who have significant decision-making and/or supervisory responsibility for the review and/or award of State contracts; or (iii) significant decision-making and/or supervisory responsibility over staff that monitors State contracts. 

CONCLUSION

            It is the opinion of the Citizen’s Ethics Advisory Board that the term “department heads” in § 1-83 (a) (1) means those individuals listed in § 4-5.

By order of the Board,

__/s/____________________________

Robert Worgaftik, Chairperson

Dated________12/27/07_________