Ethics: Advisory Opinion No. 2004-3

Advisory Opinion No. 2004-3

Interpretation Of Conn. Gen. Stat. §1-79(e)(2)

(§ 1-79 (e) (2) was subsequently amended)

The State Ethics Commission’s Principal Attorneys, Brenda Bergeron and Alice Sexton, have asked the Commission to issue an advisory opinion regarding the proper interpretation of Conn. Gen. Stat. §1-79(e)(2).  Specifically, the Commission’s attorneys note that questions have arisen concerning this provision and that no prior Commission advisory opinion directly addresses the matter.

This Advisory Opinion is rendered pursuant to Conn. Gen. Stat. §1-81(a)(3).  The Opinion is issued to provide general guidance to the Commission staff and to persons covered by the Code of Ethics and is not based on any specific set of facts.

Connecticut General Statutes §1-79(e)(2) exempts from the Ethics Code’s definition of “Gift”:  “Services provided by persons volunteering their time.”  In analyzing this provision, the Commission utilizes the standard established by the General Assembly pursuant to Public Act No. 03-154:

The meaning of the statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.  If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.

In determining the meaning of the text of §1-79(e)(2), the Commission turns to the definition of “volunteer”:

“Law a.  A person who renders aid, performs a service or assumes an obligation voluntarily,” and on the directly-related definition of “voluntary.”
“6. Law a.  Acting or performed without external persuasion or compulsion b. without legal obligation, payment or valuable consideration”
New College Edition:  The American Heritage Dictionary (1985) at pps. 1436, 37.

A review of these definitions makes clear the requirement that volunteer services must be services provided without compensation, whether in the form of direct payment or other financial consideration.  As a consequence, in applying the §1-79(e)(2) exception to the definition of “Gift”, the Commission will draw a clear distinction between:  true volunteer services provided without compensation, and free services donated to a public official, but for which the service provider is paid.

For example, a solo practitioner physician who works on a fee for service basis and who performs free work for indigent clients is “volunteering their time” within the plain meaning of §1-79(e)(2).  However, an accountant providing free services to a public official while being paid an undiminished salary or partner’s share from his or her firm does not fall within the statutory exception.

Given that the exemption allows “persons” to provide volunteer services and given that “Person” includes not just an individual but also entities such as corporations, unions, and partnerships (Conn. Gen. Stat. §1-79(i)), it can be argued that the accounting firm in the previous example is the person providing volunteer services to the public official.  The Commission, however, rejects this argument as being inconsistent with the plain meaning of “voluntary;” i.e., “performed…without…payment.”  Admittedly, an entity can provide volunteer services; e.g. a union providing ten of its members to work at a soup kitchen on their own time without compensation.  In this example both the union and the union members are providing volunteer services.  Since neither are receiving compensation, their provision of services meets the §1-79(e)(2) exception.  However, it is equally clear that, if the entity, e.g. the accounting firm, compensates its members or employees who are providing their time, the free work no longer meets the definition of volunteer services.  For the same reason, services provided at a discounted rate or for a nominal fee do not fall within the exception for volunteer services; and will be considered a gift.

Since the text of §1-79(e)(2) is unambiguous in its meaning; does not contradict related statutory provisions, and does not yield absurd or unworkable results, the rules of statutory construction, as codified in P.A. 03-154, do not permit consideration of extratextual evidence in this matter.  Rather, regardless of legislative intent, the Commission will apply the volunteer services exception to the “Gift” definition as enacted and as compelled by its clear meaning.

Finally, the Commission wishes to emphasize that even services which meet the definition of “volunteer” must also be analyzed under other relevant Code provisions; i.e., the use of office prohibition set forth in §1-84(c) and the anti quid pro quo prohibitions contained in §§1-84(f) and (g).

As recently set forth in Ethics Commission Advisory Opinion 2004-2, ­­___ CLJ No. ___, p ___ (   ), since 1998 the Commission has consistently held that a public official may not take benefits valued at more than one hundred dollars a year per donor, if given by virtue of one’s office.  See, State Ethics Commission Advisory Opinion No. 98-9, 59 CLJ No. 45, p. 5D (5/5/98).  Therefore, the acceptance of volunteer services with a fair market value in excess of one hundred dollars will violate §1-84(c), if the services are being provided by virtue of the recipient’s public office.  In determining whether, in fact, such benefits are bestowed by virtue of one’s office, the Commission will consider, among other factors, whether the donor provided equivalent services before the official assumed public office  and whether similar services have been provided to other, private recipients.

Turning to §§1-84(f) and (g), since volunteer services are something “…of value…,” as that term is used in the statutes, provision of such services based on an understanding that the official actions or judgment of the public official recipient would be influenced thereby would constitute a violation of these sections of the Ethics Code.

By order of the Commission,

Rosemary Giuliano

Content Last Modified on 4/1/2010 1:51:42 PM