ADVISORY OPINION 2009-1

Application of General Statutes § 1-84b (b) to Employees of the Office of Consumer Counsel (Overrules, in part, Advisory Opinion 1996-9)

INTRODUCTION

            The Citizen’s Ethics Advisory Board issues this advisory opinion at the request of Joaquina Borges King.  She is a former staff attorney with the Office of Consumer Counsel (“OCC”) who is now employed in the legal department of a regional provider of energy products and services, which is regulated by the Department of Public Utility Control (“DPUC”).[1] 

Attorney King would like to represent her new employer before the DPUC, but is prohibited from doing so, at least for the time being, by Advisory Opinion No. 96-9.  In that opinion, the former State Ethics Commission (“former Commission”) applied General Statutes § 1-84b (b) to OCC employees.  This revolving-door provision generally prohibits a former state employee, for one year after leaving state service, from representing anyone for compensation before his or her former agency. 

            In applying § 1-84b (b) to OCC employees, the former Commission concluded that “the former agency for OCC employees is the entire DPUC, including the OCC.”[2]  In other words, it deemed the OCC to be part of the DPUC for purposes of § 1-84b (b).  The practical effect is that former OCC employees (such as Attorney King) are banned, for one year after leaving state service, from representing anyone for compensation not only before the OCC, but also before the DPUC.  

            In her four-page “request for reconsideration and modification,” Attorney King asserts that “[t]he one year cooling off period is unnecessary and should be inapplicable to staff attorneys of the OCC, and . . . Advisory Opinion [No. 96-9] should be modified to reflect this specific exception.”[3]  Consumer Counsel, Mary J. Healey, has filed a six-page letter in support thereof, but goes a bit further, arguing that the one-year ban on appearing before the DPUC should not apply to any former OCC employees (as opposed to just its former staff attorneys).     

QUESTION

            The question is whether to overrule the portion of Advisory Opinion No. 96-9 that prohibits former OCC employees, for one year after leaving state service, from representing anyone for compensation before the DPUC.

CONCLUSION

            Based on our firm conviction that it was wrongly decided, that conclusion is overruled, meaning that former OCC employees may represent others for compensation before the DPUC (but not before the OCC) within one year of leaving state service.     

ANALYSIS

According to our Supreme Court, an administrative board should not ordinarily “review a decision and revoke action once duly taken . . . .”[4]  Why?  Because “there would be no finality to the proceeding and the result would be subject to change at the whim of the . . . board or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence.”[5]

This rule, while “wholesome and salutary . . . is by no means inflexible.”[6]  “The need for an opportunity for correction of errors, change of mind, or obtaining more adequate factual grounds for a decision is no less present in the case of a decision of . . . [the administrative agency] than in the case of a judgment of a Court.”[7]  It is therefore “reasonable and appropriate to the functioning of efficient administrative machinery that the subject matter be re-examined”[8] in one of two cases: “Where a change of conditions has occurred since the decision of the administrator or where other considerations have arisen materially affecting the merits of the matter . . . ."[9] 

That test was applied in Jacobowitz v. Department of Public Health,[10] which involved an appeal of a decision of the state Department of Public Health.  The plaintiffs there argued that the department had “improperly changed its position” on a particular matter, and that its decision to do so was “arbitrary and illegal,” as it was not prompted by a statutory change or a change in its regulations.[11]  After restating the test discussed above, the court noted that “the department’s new policy was not taken because of a statutory change, but after reconsidering its position and discussing the matter with its counsel.”[12]  “This,” the court concluded, “should be sufficient to allow for a change.”[13]  In so concluding, the court quoted approvingly another judge’s admonition that                       

[f]inality as a principle must be cautiously applied, insofar as it precludes a government authority from reversing itself or correcting a previous mistaken decision.  Certainly any legislative body has full freedom to enact a measure previously rejected, or to repeal one previously passed.  Courts, which are deemed to be the most deliberative and reflective branch of government, have the power to reverse themselves.  Why should not administrative agencies have a similar right to reach a conclusion different than a previous one without a showing of change of circumstances?  To require of them consistency for its own sake unduly invades the power of the executive department to make determinations and to govern, in violation of the fundamental constitutional principle of separation of powers.[14]

            Putting that all together (and paraphrasing our Supreme Court): Although we will not lightly overturn precedent, if, after reconsidering a prior opinion and discussing it with our counsel, we are left with the “firm conviction” that it was wrongly decided, we will not compound the error by following suit.[15]

            With that, we turn to the task of determining whether Advisory Opinion No. 96-9, or, more specifically, its conclusion that the OCC is part of the DPUC for purposes of § 1-84b (b), was wrongly decided.

            To answer that question, we start back in 1982, when the legislature established the Code of Ethics Study Committee to recommend technical and policy revisions to the Codes of Ethics for Public Officials and for Lobbyists.  Recognizing the “spotty and limited provisions concerning public officials and State employees who leave state government service for private employment,”[16] the Study Committee, in its report to the General Assembly, recommended “generally applicable revolving door legislation.”[17]  Included was a cooling-off provision.

            According to the Study Committee, the purpose of this cooling-off provision is “to preclude [a] former official from exerting undue influence over his former agency . . . .”[18]  The provision’s restriction is “aimed at contact with the former agency, since any contact could result in preferential treatment by virtue of the individual’s former status.”[19]  It is irrelevant whether the issue “involved is one with which the individual had contact as a public employee,” for the “undue influence guarded against is that which results from mere association with the former agency.”[20]  “A cooling period,” the Study Committee finished, “combats the exertion of undue influence, since that influence tends to fade with time.”[21]     

            Apparently agreeing, the legislature, without discussion, accepted the language proposed by the Study Committee[22] and enacted what was to become §

1-84b (b), which now reads, in relevant part, as follows:  

No former executive branch . . . state employee shall, for one year after leaving state service, represent anyone, other than the state, for compensation before the department, agency, board, commission, council or office in which he served at the time of his termination of service, concerning any matter in which the state has a substantial interest. . . .[23]

           

The key word there is “served,” and the question at the heart of our inquiry is this: Is a former OCC employee considered to have “served” in the DPUC at the time of his or her termination of state service? 

           

            Without defining the word “served”—or even mentioning it a single time in the entire opinion—the former Commission, in Advisory Opinion No. 96-9, concluded that the “former agency for OCC employees is the entire DPUC, including the OCC.”  (This means—in effect—that former OCC employees are considered to have “served” in the DPUC upon leaving state service.)  The former Commission based its conclusion primarily on two reasons.  First, the statutory framework under which the OCC operates presents the opportunity “for the development of contacts between colleagues at the two entities.”  Second, and in the former Commission’s words, “most importantly, the Legislature specifically endorsed this interpretation for purposes of the post-state employment provisions . . . when it enacted § 1-84b (c) and approved regulations designating the Consumer Counsel as one of the §1-84b (c) positions.”  Both reasons will be addressed, albeit in reverse order.    

Starting with what the former Commission deemed the most important reason for concluding as it did, its thinking, although not explicit, goes like this.  Section 1-84b (c), another revolving-door provision, prohibits designated state employees and officials[24] in certain state agencies from doing two things: seeking employment with any business subject to regulation by his or her “agency” or accepting such employment within one year after leaving the “agency.”  The term “agency” is expressly defined for purposes of § 1-84b (c) as follows:

As used in this subsection [that is, § 1-84b (c)], “agency” means the Office of Health Care Access, the Connecticut Siting Council, the Department of Banking, the Insurance Department, the Department of Public Safety, the office within the Department of Consumer Protection that carries out the duties and responsibilities of sections 30-2 to 30-68m, inclusive, the Department of Public Utility Control, including the Office of Consumer Counsel, the Division of Special Revenue and the Gaming Policy Board . . . .[25]

Latching on to the italicized language—which treats the OCC and the DPUC as a single “agency” for purposes of § 1-84b (c)—the former Commission concluded that the legislature must have intended the same for purposes § 1-84b (b). 

The flaw in this reasoning is two-fold.  First, it ignores that § 1-84b (c) states expressly that its definition of the term “agency” is limited to subjection (c): “As used in this subsection, ‘agency’ means . . . .”[26] 

Second, and more telling, is that one of the entities defined as an “agency” for purposes of § 1-84b (c) is “the office within the Department of Consumer Protection that carries out the duties and responsibilities of sections 30-2 to 30-68m, inclusive . . . .”  This “office” within the Department of Consumer Protection (“DCP”) is its Liquor Control Division.  Following the former Commission’s line of reasoning, because the Liquor Control Division is defined as an “agency” in its own right for purposes of § 1-84b (c), the same must hold true for purposes of § 1-84b (b); that is, the Liquor Control Division and the DCP must be treated as separate entities for purposes of § 1-84b (b).  If so, then a former employee of the Liquor Control Division could not, for a year after leaving state service, appear before that division, but he or she would be free to appear before the rest of the DCP—even though the Liquor Control Division is unequivocally part thereof. This would contradict the former Commission’s consistent (and logical) view that the term “agency” for purposes of § 1-84b (b) includes “all subdivisions contained within that agency.”[27]  It also would contradict the only written opinion to address this matter, an informal staff letter issued by the former Commission in which it was concluded that the Liquor Control Division is part of the DCP for purposes of § 1-84b (b).[28] 

  

That brings us to the former Commission’s other reason for concluding that the OCC is part of the DPUC for purposes of § 1-84b (b), namely, the statutory framework under which the OCC operates presents the opportunity “for the development of contacts between colleagues at the two entities . . . .”  The former Commission described this “statutory framework” as follows:  

The OCC’s primary role is to serve as the independent professional advocate for the interests of ratepayers in administrative hearings, court appeals and other proceedings. . . . Such work, however, emanates from activity at the DPUC and requires extensive interaction on substantive issues.  Although the OCC is within the DPUC for administrative purposes only, it has access, with limited exceptions, to all records and information available at DPUC, is entitled to the assistance of DPUC and its experts, and has the benefit of all its facilities. . . .[29]

For a frame of reference in which to evaluate this statutory-framework argument, three other advisory opinions are of particular relevance, as each addresses the relationship, or lack thereof, between state entities for purposes of § 1-84b (b).   

The earliest of these is Advisory Opinion No. 91-21.  There, the issue was whether the Department of Health Services (“DHS”) was a separate agency from the Commission on Hospitals and Health Care (“CHHS”) for purposes of § 1-84b (b).  According to the former Commission, on the one hand, all CHHS administrative matters were handled by DHS employees,[30] but on the other: the legislature had established the CHHS as an “independent” commission; there was no interaction between the two entities on any substantive issues; and the CHHS drafted its own regulations and had control over its own hearings.  Thus, but for the fact that DHS employees handled all CHHS administrative matters, everything else suggested that these were, in the former Commission’s words, “related but distinct entities.”  It concluded therefore that they were separate agencies for purposes of § 1-84b (b).

It concluded otherwise regarding the Connecticut Medical Examining Board (“CMEB”) and the Department of Public Health and Addiction Services (“DPHAS”), in Advisory Opinion No. 94-16.  In that opinion, the former Commission first noted that the CMEB was not established by the legislature as an “independent” entity; rather, it was established to be “within” the DPHAS: “there shall be within the department . . . a Connecticut medical examining board.”[31]  It then noted that DPHAS employees provide such staff to the CMEB as the DPHAS deems necessary; DPHAS employees investigate all complaints whether or not they are ultimately brought before the CMEB; and DPHAS employees prosecute all matters that reach the stage of a CMEB hearing.  Finally, it noted that the DPHAS “controls the allocation, disbursement and budgeting of funds appropriated to the” DPHAS for the operation of the CMEB.  Given these factors, the former Commission concluded that the CMEB is part of the DPHAS for purposes of § 1-84b (b). 

Likewise, the former Commission determined, in Advisory Opinion No. 96-17, that the Underground Storage Tank Petroleum Cleanup Account Review Board (“Review Board”) was part of the Department of Environmental Protection (“DEP”) for purposes of § 1-84b (b).  It did so citing the following factors: Review Board staff were DEP employees; the DEP commissioner was a Review Board member; the DEP commissioner, in consultation with the Review Board, was to adopt regulations establishing procedures for reimbursements from the cleanup fund; the statutory provisions governing the Review Board were contained in part of the general statutes over which the DEP commissioner exercised general supervision; funding for the Review Board was provided in the budget for the DEP; and the Review Board was listed in the “State Register and Manual 1995” as a board within the DEP.  Hence, the former Commission found the Review Board to be part of the DEP for purposes of § 1-84b (b).

Thus, at one end of the spectrum stands Advisory Opinion Nos. 96-17 and 94-16 (the latter opinions), in both of which the state entities involved were deemed a single entity for purposes of § 1-84b (b).  At the other end stands Advisory Opinion No. 91-21 (the first of the three), in which the state entities involved were deemed separate agencies for that purpose.  The relationship between the OCC and the DPUC—the relationship at issue—stands closer to that in Advisory Opinion No. 91-21 (i.e., separate agencies) than to those in Advisory Opinion Nos. 96-17 and 94-16 (i.e., single agency).

Indeed, the OCC is not listed in the “State Register and Manual” as being within the DPUC, but rather among the “unaffiliated state agencies, boards, and commissions.”  This makes sense given that its enabling statute, General Statutes § 16-2a, labels the OCC an “independent” state entity: “There shall continue to be an independent Office of the Consumer Counsel . . . .”[32]  It also makes sense in light of the history of the OCC.  In 1988, Senate Bill No. 19, which eventually became Public Acts 1988, No. 88-22, was titled “An Act Changing the Title of the Division of Consumer Counsel to the Office of the Consumer Counsel.”  Its express purpose was “to inform the public that the office of consumer counsel is independent from the department of public utility control.”  Summarizing Senate Bill No. 19, Senator Hale stated as follows:

Mr. President, this bill is technical in nature. The original title of the Consumer Counsel Division was the Office of Consumer Counsel, but in the late ’70’s, that office became a Division of what is the now defunct Department of Business Regulation.  When that Department was abolished 8 years ago, the Division of Consumer Counsel became an independent agency.  Again, the name change should have been made then, and Attorney Meehan indicates that this change is needed to bring his Department into conformance with other state agencies.[33]

Thus, the legislature sought to stress not only that the OCC is an independent state agency, but also that it is not (nor has it ever been) part of the DPUC. 

           

It is true that, under its enabling statute, the OCC is “within the Department of Public Utility Control for administrative purposes only . . . .”[34]  But as explained in General Statutes § 4-38f, when one agency is assigned to another “for administrative purposes only,” the former shall exercise its statutory authority “independent” of the latter and without its “approval or control,” and the latter shall provide “administrative and clerical functions” for the former.  That means that the OCC is independent of the DPUC from a policy perspective and is to rely on it solely for administrative tasks.

Such administrative reliance appears to be minimal at best.  In fact, § 16-2a (c) provides that the OCC “shall be under the direction of a Consumer Counsel, who shall be appointed by the Governor . . . .”  The Consumer Counsel, independent of the DPUC, is responsible for things such as preparing the OCC’s budget, which is separate from the DPUC’s, and hiring “such staff as he deems necessary to perform the duties of [the OCC] . . . .”[35]  Thus, in marked contrast to the three opinions discussed above—in each of which one entity was staffed by the employees of the other—the OCC is staffed by its own employees, not those of the DPUC.  Further, even though OCC and DPUC employees are housed in the same state building (10 Franklin Square, New Britain),[36] a recent tour of it revealed that the OCC and the DPUC are located in separate parts (the OCC on the first floor, the DPUC on the second) and operate as independent entities.  

Even interaction between the OCC and the DPUC on substantive matters underscores the independent nature of the OCC.  After authorizing the OCC to act as the statutory representative of consumer interest, § 16-2a (a) expressly grants the OCC party status to each contested case before the DPUC, meaning that it need not petition the DPUC for such status, and that the DPUC may not deny it.  Section 16-2a (a) also provides that the OCC is to participate “in such proceedings to the extent it deems necessary,”[37] and that the OCC may appeal DPUC decisions, which it has done on many occasions.  For example:

·        Office of Consumer Counsel v. Dept. of Public Utility Control, 252 Conn. 115, 742 A.2d 1257 (2000) (involving OCC appeal from DPUC interim rate determination).

·        Office of Consumer Counsel v. Dept. of Public Utility Control, 246 Conn. 18, 716 A.2d 78 (1998) (involving OCC appeal from DPUC approval of energy adjustment clause for power company).

·        Office of Consumer Counsel v. Dept. of Public Utility Control, Superior Court, judicial district of New Britain at New Britain, Docket No. 020513718S (April 24, 2003) (involving OCC appeal from DPUC decision with respect to gas company’s rate application).

·        Office of Consumer Counsel v. Dept. of Public Utility Control, Superior Court, judicial district of New Britain at New Britain, Docket No. 990498853 (February 15, 2001) (involving OCC appeal from DPUC decision involving electric utility’s standard offer under General Statutes § 16-244c).

As noted by the Consumer Counsel, “it makes little sense . . . to treat an entity with such a long-standing right to sue the DPUC as being that ‘same’ agency.”[38]

But what of the former Commission’s reliance on the fact that (in its words) “the OCC . . . has access, with limited exceptions, to all records and information available at DPUC, is entitled to the assistance of DPUC and its experts, and has the benefit of all its facilities”?[39]  The devil here is in the “limited exceptions,” which further serve to demonstrate that the OCC and the DPUC operate independently of one another.  These exceptions derive from General Statutes § 4-181, titled “Contested Cases, Communications by or to hearing officers and members.”  Respecting DPUC contested cases, § 4-181 prohibits ex parte communications between the DPUC and any “person or party,” but allows the DPUC “to receive the aid and advice of” its “members, employees, or agents . . . .”  In such matters, OCC employees are not considered “members, employees, or agents” of the DPUC.  In fact, the OCC “is treated (as are utilities, municipalities, or other contested docket participants) as an entity external to the DPUC, separate from it and not accorded any access to DPUC that differs from that available to anyone else.”[40]

What is left of the former Commission’s reasons for treating the OCC and the DPUC as a single agency for purposes of § 1-84b (b) is its assertion that the OCC’s work “emanates from activity at the DPUC and requires extensive interaction on substantive issues.”[41]  To address this, we return to one of the former Commission’s earliest revolving-door opinions. 

Issued roughly ten years before the opinion in question, Advisory Opinion No. 86-11 addressed whether an assistant attorney general who represented the state Department of Consumer Protection (his client agency) would be considered to have “served” in that department for purposes of § 1-84b (b).  According to the former Commission, at the time of leaving state service, the assistant attorney general will have “served” in the Office of the Attorney General—“which employs you”—but not in the Department of Consumer Protection.  In its words: “You do not ‘serve in’ the Department of Consumer Protection.  You have an attorney-client relationship with that Department.”

The former Commission recognized that its conclusion, although consistent with the plain language of § 1-84b (b), was at odds with the purpose underlying this provision.  “Most persons serving in state agencies,” it stated, “are likely to develop not only friendships but to acquire debts of obligation from those hired, promoted, or otherwise benefited by them.”  And “such friendships and IOUs” would have been acquired by this assistant attorney general in both the Office of the Attorney General, in which he “served,” and the Department of Consumer Protection, with which he had an attorney/client relationship.  Even so, the former Commission stuck to its conclusion, explaining: “Unless [§] 1-84b (b) is amended . . . [it] must interpret the language which has been enacted, whatever the legislature intended.”

Thus, despite that his work stemmed from, and required substantive interaction with, his client agency, and that he may have acquired “IOUs and friendships” in it, the assistant attorney general was not deemed by the former Commission to have “served” in that agency for purposes of § 1-84b (b). 

Like the assistant attorney general in relation to his client agency, OCC employees may, given the level of interaction between the OCC and the DPUC, acquire “friendships and IOUs” in the DPUC.  But even assuming this to be true, it is hardly justification for concluding that former OCC employees “served” in the DPUC—which is what the language of § 1-84b (b) demands. 

The plain meaning[42] of the word “serve” is “[t]o work for; be a servant to.”[43]  In light of the overwhelming weight of the evidence suggesting that the OCC and the DPUC are related—but unquestionably distinct and independent—state agencies, we cannot say that OCC employees “work for” or are “servants to” the DPUC.  Nor, by implication, can we say that former OCC employees “worked for” or were “servants to” (that is, “served” in) the DPUC at the time of leaving state service.  Accordingly, we conclude that they are not prohibited by § 1-84b (b) from representing others before the DPUC upon leaving state service.   

In sum, the only way for the former Commission to conclude as it did in Advisory Opinion No. 96-9 was to ignore the word “served,” which is precisely what it did.  (The word “served” was not used a single time in the entire opinion, not even when the language of § 1-84b (b) was paraphrased.)   Its conclusion, although consistent with the purpose underlying § 1-84b (b), is at odds with the plain language of that provision.  For that reason, it is overruled, meaning that former OCC employees may represent others before the DPUC (but not the OCC) within one year of leaving state service, without violating § 1-84b (b).

By order of the Board,

Dated January 29, 2009                                 

Robert Worgaftik, Chairperson