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 Application Of Conn. Gen. Stat. 1-84(m)(1) And Related Gift Provisions Of The Code Of Ethics For Public Officials

The Honorable James A. Amann, Majority Leader of the Connecticut House of Representatives, has asked the Ethics Commission "…for an advisory opinion regarding the proper interpretation of Section 1-84 subsection (m) of the Connecticut General Statutes."

Specifically, Representative Amann wishes to know whether, under 1-84(m)(1), a public official is prohibited from accepting a gift from an individual or entity, if that individual or entity is seeking or receiving state contracts, not from the official's office or department, but from another executive or quasi-public agency.

This Opinion is requested and issued pursuant to Conn. Gen. Stat. 1-81(a)(3), which provides, in pertinent part, that the Commission "…shall issue advisory opinions with regard to…"  The Code of Ethics for Public Officials "…upon the request of any person subject to the provisions of…" the Code.  In this instance, Rep. Amann is specifically seeking the interpretation in question in order to ascertain whether, in his judgment, remedial legislation may be necessary during the 2004 session of the General Assembly.  In response to this request, the following advisory opinion is intended to provide a general interpretation of 1-84(m)(l) and the Code's related gift provisions.  This Opinion is not based on any specific set of facts, nor should it be construed as referring to, or prejudicing, any enforcement proceeding which may be currently pending before the Ethics Commission.

Subsection 1-84(m)(1) states that "no public official or state employee shall knowingly accept, directly or indirectly, any gift, as defined in subsection (e) of section 1-79, from any person the official or employee knows or has reason to know:  (1) is doing business with or seeking to do business with the department or agency in which the official or employee is employed."  The cited gift definition, with exceptions not pertinent, includes within the term anything valued at ten dollars or more, which is directly and personally received, unless equal or greater consideration is given in return.  Under the Commission's Regulations, to avoid attribution of a gift one must either return or pay for the item within 30 days of receipt.  Regulations of Conn. State Agencies Sec. 1-92-54(c).

It is a fundamental tenet of statutory construction that "…words and phrases shall be construed according to the commonly approved usage of the language."  Conn. Gen. Stat. 1-1(a).  Under this standard, the words "doing" "business" are commonly understood to mean:  "to perform" or "to execute" "a profit seeking enterprise or concern."  Webster's Unabridged Dictionary at pps. 421 nos. 1 and 2; and 203 no. 3, Barnes and Noble (1984).

In two enforcement actions over the past six years, the Commission has applied this commonly approved usage as follows:  One is "doing business" with a "department or agency" when one contacts that department or agency to further a commercial, i.e., business, purpose; regardless of whether the entity contacted has actual, legal authority to issue or execute the contract, grant, award, etc. being sought.  Based on this statutory interpretation the Commission has concluded that the 1-84(m)(1) gift ban applies under such circumstances to any official or employee of a department or agency who "knows or has reason to know" of the business contact(s).

For example, in Ethics Commission Docket No. 2003-5, by Stipulation & Order, the Commission found that a public official had violated 1-84(m)(l) in two instances by accepting gifts from persons doing business with or seeking business from state or quasi-public agencies.  In each instance, the business (i.e., contract, lease or grant) was with an agency or department other than the office in which the Respondent-public official served; and the statutory basis for the violation was the donor's contact with the public official's office for the purpose of influencing that business.

Additionally, in Ethics Commission Docket No. 97-3, by Stipulation & Order, the Commission, again, found that a public official violated 1-84(m)(l) based on the acceptance of a gift from a person whose firm did business with the State; although the business (i.e., contracts) was not directly executed by the public official's office.

The following hypothetical will illustrate the analytical basis for these two decisions:  a person seeking business (a contract) with the Department of Public Works (DPW) contacts a friend, the Commissioner of the Department of Environmental Protection (DEP), and utilizes the DEP Commissioner's assistance to obtain the DPW contract.  Under these circumstances, the 1-84(m)(l) gift ban applies not only to the officials and employees of the DPW (the contracting department); but also to the DEP Commissioner, the official contacted to further the private person's business interests.

A review of the foregoing enforcement actions and hypothetical makes clear that the Ethics Commission, in administering and interpreting 1-84(m)(1), has rejected the argument that the gift ban only applies to employees and officials of the department or agency legally authorized to issue the contract, lease, grant, etc.

The Commission also notes that if an individual or entity goes outside of a department or agency's normal contracting process (e.g., by contacting the Commissioner or the Office of the Governor) and if $2,000 or more, in a calendar year, is expended or received incident to such contacts, the parallel gift ban for lobbyists, set forth in Conn. Gen. Stat. 1-84(j) and 1-97(a) would also apply. See, Ethics Commission Advisory Opinion 97-5, 58 CLJ No. 40, p. 9D (4/1/97); see, also, Regulations of Conn. State Agencies Sec. 1-92-42a(b).

Finally, even absent the requisite contacts and/or expenditures necessary to trigger the gift bans of 1-84(m) and (j), Conn. Gen. Stat. 1-84(c) (the Code provision prohibiting use of public office for financial gain) would bar receipt of any gift given by virtue of one's public office or position, if the gift were valued at over one hundred dollars per person per calendar year.  See, the 1997 legislative history regarding the Public Act (No. 97-6, June 18 Special Session) which established the current ten dollar gift ban.  As part of that legislation, Conn. Gen. Stat. 1-84(m)(3) (which barred the receipt of gifts from any person that had financial interests which could be substantially affected by the performance or nonperformance of one's official duties) was repealed.  In the floor debate regarding this repeal, the House Chair of the Government Administration and Elections Committee, Representative Susan Bysiewicz, was asked why 1-84(m)(3) was being deleted.  Representative Bysiewicz replied as follows:

Mr. Speaker, we are removing that language at the request of the Ethics Commission.  They believe that it is vague and over broad, and that there are other places in our statutes which deal with this issue.

And I would cite you one as a, Section 1-84c of our statutes which says essentially that you cannot use your public office for personal gain.  And so, for that reason we are removing that language.

Vol. 40 H.R. Proc., part 21, 1997 June 18 Special Session pps.251, 252 (June 20, 1997)

Acting with the explicit knowledge and authorization of the General Assembly, as made clear by the foregoing legislative history, the Commission, some three months after the effective date of the Public Act, issued Ethics Commission Advisory Opinion 98-9, 59 CLJ No. 45, p. 5D (5/5/98), wherein the Commission interpreted 1-84(c) as follows:

Given the current, essentially absolute, ban on gifts from regulated donors…the Commission believes the financial thresholds established by the gift law are no longer an appropriate and sufficient benchmark for limiting benefits provided by virtue of one's position, from non-regulated benefactors.  Alternatively the Commission now adopts the de minimis financial benefits standard set forth in the regulations implementing the Code's conflict of interest provisions.  See, Regulations of Conn. State Agencies Sec. 1-81-30(a).  Specifically, under this standard, benefits with a cumulative value of less than one hundred dollars per person per year provided to a public official or immediate family member, by virtue of the official's position, by a non-regulated donor will be permitted.  Application of this standard will allow modest benefits from non-regulated donors…At the same time, however, the de minimis  limitation will prevent the public official from improperly requesting or receiving substantial, clearly inappropriate, gifts or other benefits by virtue of public position.

The Ethics Commission has consistently applied this standard since 1998 and reaffirms today that gifts given to a public official by donors not regulated under 1-84(m) or (j), e.g., subordinates, political appointees and constituents, by virtue of the official's public position must not exceed one hundred dollars per recipient per year.

In reiterating this standard, the Commission believes it is important to note that 1-84(c) prohibits gifts valued at over one hundred dollars only when the gift is being given because of the official's state position.  As a consequence, the statutory limitation would not apply if the donor could establish that he or she had given gifts of approximately the same dollar value to the official before that official assumed public office.

By order of the Commission

Rosemary Giuliano