Ethics: Advisory Opinion No. 2004-9

Advisory Opinion No. 2004-9

Review Of Commission Procedures For Issuance Of Complaints And Subpoenas 

(Superseded by Statute and Regulations)

Pursuant to the Ethics Codes’ statutory requirements, “Upon the complaint of any person on a form prescribed by the Commission, signed under penalty of false statement, or upon its own complaint, the Commission shall investigate any alleged violation of this part.”  Conn. Gen. Stat. §§1-82(a)(1) and 1-93(a)(1).  In the conduct of its investigations, “…the Commission shall have the power to…subpoena witnesses under procedural rules adopted by the Commission as regulations.” Id. 

In a recent superior court appeal, a respondent challenged the legality of a complaint and subpoena issued pursuant to the above referenced sections.  State State Ethics Commission v. Linda Kowalski, No. CV 04-0832632.  Specifically, the respondent claimed that a complaint filed by a Commission attorney, without a Commission hearing or vote, was invalid; and that a subpoena signed by the Commission Chairperson, again without a hearing or vote by the Commission, was also improper. 

The Court rejected these arguments and held that the Commission’s procedures were in compliance with the law.  Memorandum of Decision, May 14, 2004 (Booth, J.).  In essence, the Court held that:  the Commission’s attorney was “duly authorized” to file the complaint; and that the subpoena was properly executed by the Chairperson.  In both instances, the Court further found that there was no statutory provision requiring a Commission hearing or vote before issuance of a complaint or subpoena.  Id. at pp. 4-9. 

Although the Court’s decision was unequivocal in rejecting the respondent’s position, the Commission nonetheless believes that it is appropriate to issue this advisory opinion clarifying and reiterating the Commission’s existent procedures in such matters. 

Under Commission Regulations, the “Commission means the State Ethics Commission of the state of Connecticut, its commissioners, and any person duly authorized to act in behalf of the Commission.”  Regulations of Conn. State Agencies §1-92-12(a).  Acting in accordance with this Regulation, in March 1982, the Commission authorized its staff attorneys to file Commission complaints.  Minutes of State State Ethics Commission, March 3, 1982, at p. 2.  In essence, it was the Commission’s opinion that such a procedure would best protect the due process rights of respondents by preventing the Commissioners’ ex parte review of the evidentiary basis for the filing of a complaint. 

Again acting in accord with its Regulations, the Commission’s subpoenas consistently have been signed by the Chairperson.  See, Regulations of Conn. State Agencies §1-92-5:  “The Commission’s…subpoenas…shall be signed in behalf of the Commission by the Chairperson.”  As with Commission complaints, said subpoenas are not reviewed or voted on by the Commissioners in an ex parte proceeding.  Rather, any respondent seeking to contest a subpoena, in whole or in part, is permitted to do so in a noticed motions hearing, conducted by the Commission after the subpoena has been issued and served.

Today the State Ethics Commission, taking cognizance of the above cited judicial approval of its complaint and subpoena procedures, reiterates the continuing application of these procedures to Commission enforcement proceedings conducted pursuant to Conn. Gen. Stat. §§1-82 and 1-93.

By order of the Commission,

Rosemary Giuliano

Content Last Modified on 4/1/2010 1:55:18 PM