ADVISORY OPINION 2010-6

Further Application of the Code of Ethics for Public Officials to Members of the Children’s Trust Fund Council  

Introduction

The Citizen’s Ethics Advisory Board (“Board”) issues this advisory opinion at the request of Laura Amenta, chairperson of the Children’s Trust Fund Council (“Council”).  As either a current or a former “public official,” depending on the conclusion reached below, Ms. Amenta (“Petitioner”) is statutorily entitled to petition the Board for an advisory opinion.[1]  At its September 2010 regular meeting, the Board granted her petition.    

Background

            The Children’s Trust Fund was established “to fund programs aimed at preventing child abuse and neglect and family resource programs.”[2]   Its sixteen-member Council is “an interdisciplinary, collaborative private-public structure,” the members of which are “are appointed by legislative officials . . . and are uncompensated for their time.”[3]  Although previously an independent state agency responsible for overseeing “the administration of . . . contracts and grants to public and private non-profit organizations,”[4] in late 2009 the Council was legislatively “merged . . . into the [state] Department of Social Services (DSS) and changed . . . into an advisory body to the Commissioner of DSS . . . .”[5]         

Having been relieved of “all fiduciary responsibilities,” including involvement “in the RFP process or in approval of the use of funds,”[6] the Council recently “proposed” to DSS that, in order to fulfill the Trust Fund’s business needs, it enter into a contract with The Connecticut Forum, a nonprofit entity that organizes panel discussions and community outreach programs.  Agreeing with the Council’s proposal, DSS forwarded a no-bid contract with The Connecticut Forum to the state Office of Policy and Management, where it awaits approval.  

            Meanwhile, The Connecticut Forum has asked Petitioner, the Council’s chairperson, to be on its board of directors.  Members of the board of directors “receive no compensation but are required to provide a financial commitment to the forum in the form of cash.”[7]

Question

            Based on those facts, Petitioner asks the following questions: (1) whether Council members are subject to the Code of Ethics for Public Officials, chapter 10, part 1, of the General Statutes (“Code”), solely by virtue of their Council membership; (2) whether Petitioner (i.e., the Council’s chairperson) may join The Connecticut Forum’s board of directors; and (3) whether “a member of an agency that has or has in the past held contracts with the Trust Fund [may] be named to the Council . . . .”[8]

Conclusion

Because we conclude that Council members are not subject to the Code solely by virtue of their Council membership, it follows that the Code will neither prohibit Petitioner from joining The Connecticut Forum’s board of directors, nor ban members of agencies that have or have had contracts with the Trust Fund from serving as Council members.

Analysis

            Petitioner’s first question, the answer to which resolves the other two, is whether Council members are subject to the Code solely by virtue of their Council membership.[9]  That depends on whether Council members are “public officials,” who are subject to the Code’s provisions, or “members of an advisory board,” who are “excluded from the definition of ‘public official’ and therefore . . . not subject to any of the provisions of the Code.”[10]     

Under General Statutes § 1-79 (k), the term “public official” includes, among others, individuals appointed to any office of the legislative, judicial, or executive branch of state government by the Governor, a gubernatorial appointee, or a member of the General Assembly—but does not include a member of an advisory board.  Here, Council members are appointed by members of the General Assembly (i.e., state legislative leaders) to an executive branch office (i.e., the Council, which is, by statute, within DSS, an executive branch state agency),[11] meaning that Council members meet the definition of “public official” insofar as their appointment is concerned. 

The question now is whether they also meet the definition of “member of an advisory board,” for if so, they are statutorily excluded from the definition of “public official” and, by implication, not bound by the Code’s provisions.  The term “member of an advisory board” includes, among others, “any individual

(1)  appointed by a public official as [a] . . . member of a . . . council established to advise, recommend or consult with a public official . . .

(2)  who receives no public funds other than per diem payments or reimbursement for his actual and necessary expenses incurred in the performance of his official duties, and

(3)  who has no authority to expend any public funds or to exercise the power of the state.”[12]

Addressing the definition’s first two parts, Council members receive no public funds (i.e., they are uncompensated) and are appointed by public officials (i.e., state legislative leaders) to a council established to advise a public official (i.e., the DSS Commissioner). In fact, the Council’s enabling provision states that the Trust Fund’s resources “shall be used by the . . . the Commissioner of Social Services with the advice of the Children’s Trust Fund Council . . . .”[13]  It also states that “[t]he Commissioner of Social Services, with the advice of the Children’s Trust Fund Council, shall adopt regulations . . . to administer the fund and to set eligibility requirements for programs seeking funding.”[14]  Thus, Council members satisfy the first and second parts of the definition of “member of an advisory board.”

That leaves the definition’s third part, and the question of whether Council members have the “authority to expend any public funds or to exercise the power of the state.”[15]  In Advisory Opinion No. 99-12, the former State Ethics Commission (“SEC”) determined that Council members did indeed have such authority, based on the fact that the “Council oversees the administration of approximately $3.5 million in contracts and grants to public and private non-profit organizations.”  That being the case, the SEC deemed Council members to be “public officials” (and therefore subject to the Code) rather than “members of an advisory board.” 

Then came, a decade later, Public Acts 2009, No. 09-5, in which the General Assembly ended the Council’s status as an independent state agency; moved the Council from the Department of Children and Families, where it had existed for administrative purposes only, and placed it “within” DSS; removed its authority to employ an executive director and staff; transferred its authority to expend Trust Fund resources and draft regulations to the DSS Commissioner, who is to act “with the advice of the Children’s Trust Fund Council”; and delegated its authority to administer various programs and services to DSS, which is to act “with the guidance of the Children’s Trust Fund Council . . . .”  Because the Council no longer has independent authority to expend state funds or exercise state power,[16] but rather acts in a purely advisory capacity to the DSS Commissioner, its members satisfy the third part of the definition of “member of an advisory board.” 

Accordingly, we conclude that, having met each part of the three-part definition of “member of an advisory board,” Council members are “excluded from the definition of ‘public official’ and therefore . . . not subject to any of the provisions of the Code.”[17]  It follows, in answer to Petitioner’s other questions, that the Code will neither prohibit Petitioner from joining The Connecticut Forum’s board of directors, nor ban members of agencies that have or have had contracts with the Trust Fund from serving as Council members.