Advisory Opinion No. 2004-2
Application Of Conn. Gen.
Stat. §1-84(m)(1) And Related Gift
The Code Of Ethics For Public Officials
The Honorable James A. Amann,
Majority Leader of the Connecticut House of Representatives, has asked the Ethics
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 officials 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 Codes
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 State 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 Commissions 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.
Websters 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,
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
For example, in State 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 donors contact with the public officials office for
the purpose of influencing that business.
Additionally, in State 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 officials 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 Commissioners 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 persons business
A review of the foregoing enforcement actions and
hypothetical makes clear that the State 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 agencys 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, State 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 ones 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 ones 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 State 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
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 State 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 ones
position, from non-regulated benefactors.
Alternatively the Commission now adopts the de minimis financial benefits standard set forth in the
regulations implementing the Codes 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 officials position, by a
non-regulated donor will be permitted.
Application of this standard will allow modest benefits from
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 State 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 officials 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 officials 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