Advisory Opinion No. 2010-7

Application of the Code to Potential Conflicts of Interest for Members of the Board of Education and Services for the Blind

The Citizen’s Ethics Advisory Board issues this advisory opinion at the request of Andrew Norton, Legislative and Legal Affairs Director for the Board of Education and Services for the Blind (“BESB”).  This is the second of two opinions[1] regarding the application of the Code of Ethics for Public Officials (“Code of Ethics”) to BESB’s board of directors and employees.  Mr. Norton asks whether a BESB board member may advocate or vote for an agency decision which would predominantly benefit a class of which he is a member (e.g., blind persons over the age of 55). 

Facts

The following facts are relevant to this advisory opinion.  Established in 1893, BESB is the oldest continually operating state agency in theUnited Statesthat provides services to individuals with visual limitations.[2]  BESB

provides, within available resources, comprehensive low vision services, specialized education services, life skills training, case management, and vocational services to individuals of all ages who are legally blind and to children who are visually impaired. The agency assists them in acquiring the skills and support services necessary to be independent.[3]

BESB’s enabling statute requires that “not less than two of the members” of its board be blind persons, and that one member be the parent of a child “who receives services provided by the board.”[4]  Currently ten of the eleven members of the board are blind and all have received, or have a child who has received, BESB services. 

The Adult Services Division of BESB oversees the Older Blind Grant.  That grant is made up of federal funds for people who are blind and 55 or older. Older Blind Grant dollars are spent on such things as low vision services from eye doctors, educational materials, and Closed Circuit Televisions.  Any blind person who is 55 or older is eligible for grant funds if the device or service fits within an Independent Living need.  The Grant, which operates under a federal formula, is not competitive, as are other BESB programs and allocations.

BESB maintains a registry of blind persons in the state of Connecticut.  The registry lists 12,586 blind persons.  Of that number, 9,282 are 55 years old or older.   

Question

Petitioner asks whether a BESB board member may advocate or vote for an agency decision that would predominantly benefit a class of which he is a member (e.g., blind persons over the age of 55).  For example, whether a BESB board member may vote for an increase in the services rendered under the Older Blind Grant.

Conclusion

We conclude that a BESB board member may advocate or vote for an agency decision that would predominantly benefit a class of which he is a member (e.g., blind persons over the age of 55), but if faced with a potential conflict of interests, the board member must either recuse himself from the matter or prepare a written statement pursuant to General Statutes § 1-86.

Analysis

The relevant conflict of interests provisions are General Statutes §§ 1-85 and 1-86.  Pursuant to §1-85, 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.[5]  There is an exception to that rule: The official does not have a substantial conflict of interest if any benefit or detriment accrues 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.[6]

With respect to that exception, the former State Ethics Commission (“SEC”), by regulation and advisory opinion, expounded upon the phrase “profession, occupation or group” as found in § 1-85. For example, in a prior enforcement action, the SEC explained that the term “group,” as used in §1-85, must be equivalent in size and interests to a “profession” or “occupation.”[7] In Advisory Opinion No. 2002-14, the SEC determined that “the approximately fifty creditors of the Milford Academy are an insufficient class to constitute a ‘group’ as that term is utilized in §1-85.” And in Declaratory Ruling 92-C, the SEC stated that personal injury attorneys in Connecticut—i.e., a subset of the “profession” of lawyers—constituted a “group” for purposes of § 1-85.  

Further, in Advisory Opinion No. 2003-18, the SEC considered all certified teacher/union members in a city a “group” when the consideration is limited to a specific geographical area.  The SEC pointed out that there were 243 licensed physicians in Waterbury, in comparison to 1,347 certified teachers in the same town.  In that instance the SEC, in essence, classified this subset of a greater, statewide “profession” to be a “group” for purposes of the Code’s conflict of interests provision.

Having considered the precedent set forth by the SEC, we conclude that the 9,282 blind persons over 55 years of age constitute a “group” for purposes of § 1-85.[8]  Acccoringly, if, by virtue of a vote for an increase in the services rendered by the Older Blind Grant, any benefit or detriment accrues to a board member as a member of that group (i.e., blind persons 55 or over) to no greater extent than any other member of such group, he does not have a substantial conflict of interests.

However, even if the board member does not have a substantial conflict of interests, he may have a potential conflict. Pursuant to § 1-86, a public official has a potential conflict of interests if he would be required to take official action that would affect his financial interests, unless such interest is de minimis in nature[9] or not distinct from that of a substantial segment of the general public.  The interests of BESB board members are not those of a “substantial segment of the general public” as that term is used in the statute.[10]  

Thus, if, for example, a board member age 55 or older is faced with a vote to expand Older Blind Grant services to provide each older blind person with a Closed Circuit Television (valued over $100), such board member has a potential conflict of interests. If confronted with such a conflict, the board member has two alternatives under § 1-86:

such official or employee shall, if such official or employee is a member of a state regulatory agency,[11] either excuse himself or herself 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, such official or employee is able to vote and otherwise participate fairly, objectively and in the public interest.Such public official or state employee shall deliver a copy of the statement[12] to the Office of State Ethics and enter a copy of the statement in the journal or minutes of the agency.[13]

Allowing the board members to participate upon completing the written statement is further supported by the statutory framework of BESB.  Specifically, as previously noted, BESB’s enabling statute requires that not less than two of the members of its board be blind persons, and that one member be the parent of a child who receives services provided by BESB. “[W]hen 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 individual’s specific experience and expertise outweigh the potential conflicts.”[14]  

By order of the Board,

Dated November 18, 2010                       

Thomas H. Dooley, Chairperson