Ethics: Advisory Opinion No. 1994-20

Advisory Opinion No. 1994-20
Advisory Opinion No. 1994-20

Former Department Of Mental Health Employee Testifying
In Suit Against Department Of Correction

The Acting Commissioner of the Department of Correction (DOC) has asked whether a former Department of Mental Health (DMH) employee may participate in a pending civil suit against the DOC concerning the adequacy of mental health services at the Bridgeport Correctional Center (BCC).

In 1992 Dr. Robert Phillips, then the Director of Forensic Services of the Department of Mental Health and the Chief Executive Officer of Whiting Forensic Institute, participated personally and substantially in a study of mental health services at DOC facilities, including BCC.  The report thereon was entitled “State of Connecticut, Department of Mental Health Task Force Report on Mental Health Service Delivery in the Department of Correction, Penultimate Draft, August 13, 1992” (“the 1992 report”).  In preparing the report Dr. Phillips made site visits, conducted staff interviews and reviewed confidential inmate medical records.  Dr. Phillips resigned from state service effective September 15, 1993.

In proceedings before the State of Connecticut Freedom of Information Commission on the subject of whether the 1992 draft report should be made public, it was determined that the report “set [] forth legal and mental health standards of care, compile[d] data with respect to mental health services provided at the surveyed facilities in the state, compare[d] the actual services provided against the applicable legal and mental health standards as cited in the Report, and . . . use[d] that analysis to make recommendations for the development or improvement of mental health programs and correctional facilities.”  Final Decision, FIC Docket No. 92-319, paragraph 13 (August 11, 1993).

In June, 1994 Dr. Phillips toured BCC in anticipation of offering his opinion to inmate plaintiffs in their lawsuit against the DOC “as to whether the psychiatric standards of practice and psychiatric services now available to inmates at [BCC] are at present consistent with the standards of practice for mental health services in correctional settings.”  June 29, 1994 letter from Robert Phillips to Atty. Martha Stone, plaintiffs’ counsel.  Dr. Phillips was not given access to any inmate records during the 1994 tour, and none of the staff members interviewed in 1994 were working at BCC, or interviewed, in 1992.  Dr. Phillips states that he did not base any aspect of his 1994 work on the 1992 draft, or on any of the underlying confidential information to which he had access in 1992.

Conn. Gen. Stat. 1-84a prohibits the disclosure or use of confidential information, acquired in state service, for the financial gain of oneself or another person.  This is a life-long prohibition, and permanently bars Dr. Phillips from using such confidential information in connection with compensated testimony, consulting services, or other remunerated activity.  The term “confidential information” refers to information, whether recorded or not, which is “not generally available or released to the public” by virtue of state or federal law.  State Ethics Commission Advisory Opinion No. 90-7, 51 Conn. L.J. No. 35, p. 6D (February 27, 1990).  The term does not apply to information which has been disclosed to the public or which is disclosable to the public under the Freedom of Information Act, Conn. Gen. Stat. 1-15, et seq.  The fact that the report itself was released to the public does not affect the confidentiality of underlying data, recorded or unrecorded, which fit the above description.

The Commission has previously stated that a former state employee may not act as a consultant to a litigant, other than the State, if confidential information gained through State service could be of use in relation to the pending suit.  State Ethics Commission Advisory Opinion No. 88-6, 49 Conn. L.J. No. 45, p. 1D (April 4, 1988).  In that opinion the Commission stated that such a broad formulation was necessary, because “[i]f one has the requisite confidential information, it would seem virtually impossible, no matter how ethical the individual, to proceed in an endeavor without, at least, inadvertent violation of the Code.”  In 1992 Dr. Phillips had access to confidential inmate medical records which were not made available to him or to other consultants in 1994, the contents of which could be of use to the plaintiff inmates in their suit.  Therefore, Dr. Phillips should not act as the plaintiff inmates’ expert witness in their suit.

In addition, Conn. Gen. Stat. 1-84b(a) prohibits a former state employee from representing anyone other than the State “concerning any particular matter (1) in which he participated personally and substantially while in state service and (2) in which the State has a substantial interest.”  Under the circumstances described by the petitioner, Dr. Phillips may not offer to anyone other than the state his services as an expert witness on the subject of the report in question.  Dr. Phillips states that he has declined to discuss or address the 1992 DMH draft report, or any confidential information contained therein, with the plaintiffs.

The Commission finds that Dr. Phillips’s observation and professional opinion of the quality and availability of mental health facilities at DOC institutions, including BCC, is a “particular matter” within the meaning of 1-84b(a).  It is possible that the quality and availability of mental health facilities at DOC changed materially as a result of the 1992 draft report, or for another reason.  Absent evidence of such change, however, the Commission further finds that Dr. Phillips’s 1994 site visit does not provide him with a clean slate upon which to etch a professional opinion which is distinguishable, for purposes of 1-84b(a), from the opinion rendered in 1992.

The plaintiffs in the lawsuit against the DOC have stated that they will elicit Dr. Phillips’s testimony regarding the 1992 draft report through the issuance of a subpoena, if necessary.  If the plaintiffs take such a step Dr. Phillips will be compelled to testify, but still will be precluded, under the Code of Ethics for Public Officials, from accepting remuneration for his testimony or advice on the subject of the draft, any confidential information or any “particular matter,” as that term is used in Conn. Gen. Stat. 1-84b(a).

By order of the Commission,

R.E. VanNorstrand
Chairperson



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