Ethics: Advisory Opinion No. 95-1

Advisory Opinion No. 95-1
Advisory Opinion No. 95-1

Application Of Revolving Door Law To Former
Division Of Criminal Justice Investigator

Robert K. Baker, a former investigator for the Division of Criminal Justice assigned to the Litchfield State’s Attorney’s office, has asked how the post-state employment rules of the Code of Ethics for Public Officials, Conn. Gen. Stat. 1-79 et seq., apply to his subsequent employment as a private investigator by the family of a homicide victim.  The death occurred in the spring of 1991.  In his state capacity, Mr. Baker viewed the crime scene, attended a portion of an initial meeting with the state police, reviewed several reports, search warrants and arrest warrants, attended the probable cause hearing and arranged for the attendance of witnesses at that hearing.  Mr. Baker states that he “did no investigation in this case while employed by the state; all investigation was done by the State Police.”  Mr. Baker then retired from state service in February of 1992.  The trial in the matter took place in the fall of 1992, ending in a hung jury.  In December of 1992, Mr. Baker was hired as a private investigator by the family of the victim.  Subsequently, he gathered new information which was ultimately presented to the Litchfield State’s Attorney’s office for use in the state’s case against the defendant in the first trial.

The facts presented by Mr. Baker suggest three potential issues under the Code’s revolving door laws.  First, under Conn. Gen. Stat. 1-84a, no former state employee may disclose or use confidential information gained by reason of his state duties for his or anyone else’s financial gain.  Under this section, if Mr. Baker were privy to confidential information regarding a particular case, for example, he should not use that information to secure employment with a victim’s family.  Under the facts presented here (i.e., that the trial had already taken place, and hence the fruits of the earlier investigation were public when Mr. Baker accepted employment as a private investigator in this matter) it appears that any confidential information once available to Mr. Baker was no longer confidential at the time that he theoretically might have wanted to use it.  Therefore, Conn. Gen. Stat. 1-84a does not apply.

Secondly, under Conn. Gen. Stat. 1-84b(b), a former state employee may not represent anyone, other than the state, for compensation, before his former agency for a period of one year after he leaves state service.  “Represent” has been broadly defined to include attending meetings at which agency employees are present, signing documents which are submitted to the agency, or making phone calls to the agency regarding a particular matter.  See Advisory Opinion No. 91-24, 53 Conn. L.J. No. 16, p. 1C (10/15/91).

Mr. Baker and the Senior State’s Attorney in Litchfield argue that this section should not be applied to Mr. Baker because the ultimate goal of both the state and the victim’s family is the same--to find the killer and achieve justice.  Such an argument, although certainly appealing, does not take into account the language of the statute, which creates an exception to the ban only if the former state employee is representing the state before his former agency.  The statute does not allow the Ethics Commission to look into the motivation of the private employer.  In any event, it may not always be the case that the interests of the state and of the private client of a former state investigator are the same.  The former investigator in such a situation is being paid by a private party, not by the state, and represents his private employer’s interests.  Therefore, the one-year ban should, and does, apply.[1]

Under the specific facts here, however, it does not appear that Mr. Baker’s actions violated Conn. Gen. Stat. 1-84b(b).  By the time Mr. Baker accepted employment with the victim’s family, almost one year had already elapsed since his retirement from state service.  Also, Mr. Baker’s attorney indicated at a hearing on this issue that the results of his investigation were turned over to the family, who then shared it with the state.  Of course, if the submission to the state had taken place before Mr. Baker’s first year of retirement had passed, and if the report was signed or contained some other indication of authorship, then Conn. Gen. Stat. 1-84b(b) would have been violated.  No such information has been presented to that effect, however, and therefore, no violation appears to have occurred.

Finally, under Conn. Gen. Stat. 1-84b(a), no former state employee may ever represent anyone other than the state concerning any particular matter in which he participated personally and substantially while in state service and in which the state has a substantial interest.  This section is the most troublesome for Mr. Baker under the facts he has provided.  If he was personally and substantially involved in the investigation of this crime, he could not leave state service and subsequently represent the victim’s family in the ongoing investigation.  The same reasoning which applied to 1-84b(b) applies as well here.  The interests of the state and the private employer may not always agree.  As long as a former state investigator has been personally and substantially involved in a matter in which the state has a substantial interest, the restrictions of 1-84b(a) will apply.

Again, however, it does not appear that, under the narrow and specific facts presented, Mr. Baker’s actions conflict with the requirements of Conn. Gen. Stat. 1-84b(a).  Mr. Baker assisted with some of the administrative aspects of the preliminary investigation and probable cause hearing, but was not involved in the investigation or prosecution of the case.  The fact that his actions were supervised or subject to review is not dispositive:  the Commission has long held that work which is anything other than ministerial, clerical or peripheral (e.g., merely typing a document) meets the “substantial” criterion.  See State Ethics Commission Advisory Opinion No. 88-7, 49 Conn. L.J. No. 45, p. 3D (4/4/88).  Certainly, an investigator working to collect evidence for use by a prosecutor at trial is performing work of a substantial nature.  Nonetheless, Mr. Baker’s activities in connection with this particular matter do not appear to rise above the merely ministerial, clerical or peripheral.  Therefore, since he was not substantially involved in the matter, he is not barred by 1-84b(a) from investigating the crime for the victim’s family.  The question is a narrow one, however; therefore, any former employee who finds himself in a similar situation should check with the State Ethics Commission before accepting such employment.

By order of the Commission,

Rev. William Sangiovanni
Acting Chairperson


[1] If the state prosecutors felt that a former state investigator’s assistance in a particular matter was necessary, they could hire him as an independent contractor to complete or continue his investigation, even during the first year after his departure from state service.  Within that first year, his compensation would be limited to an hourly rate no greater than his rate when he left state service, plus (1) the value, on an hourly basis, of any benefits the state provided and (2) reimbursement for necessary expenses incurred.  See State Ethics Commission Advisory Opinion No. 90-30, 52 Conn. L.J. No. 15, p. 1C (10/9/90).

 


Content Last Modified on 9/7/2005 8:01:11 AM