Ethics: Advisory Opinion NO. 2005-4

Advisory Opinion NO. 2005-4

 

Outside Employment By Well-Known State Employees or Public Officials

 

Executive Summary

As articulated in its prior decisions, the Ethics Commission’s so-called “celebrity status” rule is meant to permit a celebrity state employee or public official to use his or her celebrity status – even celebrity status derived from his or her state office or position -- in the same manner as the regulations expressly permit a state employee or public official to use his or her expertise for financial gain, i.e., it is permissible so long as it doesn’t violate any other provision of the Code of Ethics for Public Officials. See Regs. Conn. State Agencies §1-81-17.  As it has been articulated (if not necessarily applied), the celebrity status rule is not an exception at all, but rather an interpretation or extension of Conn. Gen. Stat. §1-84(c):  even if the celebrity status rule would permit certain conduct by a celebrity state employee, the Commission has indicated that said conduct must nevertheless pass muster under Conn. Gen. Stat. §1-84(b) – the outside employment statute – and the rest of the Code of Ethics for Public Officials.  In its application, however, the celebrity status rule has, at times, been used by the Ethics Commission or its staff to permit well-known state employees to accept outside employment which arguably impairs their independence of judgment with regard to their state duties, or permits them potentially to use their state position for their financial gain.

 

The Commission has been asked to review the celebrity status rule and its application, and to decide whether it agrees with the interpretation which gave rise to the celebrity status rule.  Based upon the Commission’s review of the relevant statutes and regulations, and several related opinions, the Commission concludes that there is no statutory or regulatory basis for treating so-called “celebrity” state employees differently from all other public officials and state employees, simply because they are “celebrities.”  In particular, unlike the use of expertise -- which is expressly permitted in some circumstances by the Commission’s regulations -- there is no equivalent provision permitting a use of celebrity status. 

 

The Commission finds that reference to the celebrity status of certain state employees has skewed the focus away from the statutory and regulatory criteria the Commission is charged with interpreting and enforcing.  Accordingly, the Commission finds it necessary to return to the proper focus by reviewing the law as it applies to the outside employment of all state employees and public officials.  The Commission’s conclusion in this regard, however, does not require that all previous “celebrity status” opinions be revoked, as many of these opinions did not need to rely upon the employee’s celebrity status to achieve its ultimate result, i.e., permitting the outside employment about which the celebrity state employee inquired.  Instead, prospectively, the Commission (or its successor, the Citizens Ethics Advisory Board) will review outside employment on an equal basis for all state employees:  so long as the outside employment’s provisions do not violate Conn. Gen. Stat. §§ 1-84(b) or 1-84(c), or the regulations thereto, it is permissible.

 

In summary, the Commission or Commission staff has, at times, approved outside employment by “celebrity” state employees that arguably could be inconsistent with the statutes and regulations they are charged with interpreting and enforcing, and even inconsistent with the opinions themselves.  This opinion is meant to review the status of the law as it relates to outside employment, and reaffirm those points which find their basis in the statutes and regulations the Commission is charged with interpreting and enforcing.

 

Background

 

The Ethics Commission has been asked to review its application of outside employment provisions to so-called “celebrity” state employees.  In particular, Governor M. Jodi Rell publicly asked the Ethics Commission “to determine whether rules prohibiting state employees from using their public offices for private gain should be clarified,” and to “`take another look’ at how ethics rules restricting outside compensation to public officials are applied.” Hartford Courant, 2/23/05

 

On March 8, 2005, the Commission met and requested a compilation of all opinions concerning the outside employment contracts of the UConn coaches.  Thereafter, the Commission members were supplied with over forty opinions – formal Commission opinions and informal staff opinion letters – dealing primarily with the outside employment of UConn’s coaches and related topics.  On April 12, 2005, the Ethics Commission convened and decided to refer the matter to the Commission’s Organization & Policy Committee for the Committee to make recommendations for action and/or advice.  On May 3, 2005, the Organization & Policy Committee met and reviewed several opinions which formed the basis of the Commission’s celebrity status opinions.  At that time, the Committee itself asked for a draft opinion expressing its concerns about whether a statutory or regulatory basis existed for the Commission’s opinions articulating the celebrity status rule.  As public officials themselves, the Committee members are permitted to ask for such an opinion. Regs. Conn. State Agencies § 1-92-38.

 

Notice of the Commission’s consideration of this issue was provided by mail to UConn’s Athletic Director to notify all members of his staff.  Additionally, the Commission sent notice of its consideration of this issue to Coaches Jim Calhoun and Geno Auriemma, as well as Dr. Henry Lee.  These three individuals are the only three persons now or formerly in state service whom the Commission has recognized as having “celebrity status.”  Finally, on May 11, 2005, the Commission issued a press release inviting comment from interested persons, including the public, concerning the Commission’s reconsideration of its application of Conn. Gen. Stat.. §§ 1-84(b), 1-84(c), and 1-84(k) to “celebrity” state employees.  All comments received were presented to the Commission.

 

Outside Employment and the Code’s Use of Office for Financial Gain Provision

The so-called “celebrity status” rule evolved through the Commission’s and Commission staff’s interpretation of Conn. Gen. Stat. §1-84(c) – the provision of the Code of Ethics for Public Officials which prohibits state employees and public officials from using their public office or position for certain persons’ financial gain.  Connecticut Gen. Stat. §1-84(c) states: 

 

(c) No public official or state employee shall willfully and knowingly disclose, for financial gain, to any other person, confidential information acquired by him in the course of and by reason of his official duties or employment and no public official or state employee shall use his public office or position or any confidential information received through his holding such public office or position to obtain financial gain for himself, his spouse, child, child's spouse, parent, brother or sister or a business with which he is associated.

 

Conn. Gen. Stat. §1-84(c).  This provision has broad application to a number of situations, including but not limited to outside employment and benefits/gifts given by virtue of one’s public office or position. 

 

The Commission’s regulation on this provision, and the other statutory outside employment provision, Conn. Gen. Stat. §1-84(b)[1], states:

 

Subsection (b) and (c) of Section 1-84 of the general statutes: Use of expertise for financial gain not prohibited.  Pursuant to Subsection (b) and (c) of Section 1-84 of the general statutes, no public official or state employee may accept outside employment which will impair independence of judgment as to state duties or require or induce disclosure of confidential state information, nor may such an individual use state position or confidential information acquired through state service to obtain personal financial gain. These provisions do not, however, prevent a public official or state employee from using his or her expertise, including expertise gained in state service, for personal financial gain as long as no provision of the Code of Ethics for Public Officials, Chapter 10, Part I of the general statutes, is violated. Generally, Subsection (b) and (c) of Section 1-84 are violated when the public official or state employee accepts outside employment with an individual or entity which can benefit from the state servant's official actions (e.g., the individual in his or her state capacity has specific regulatory, contractual, or supervisory authority over the private person). Any public official or state employee considering accepting outside employment which may be barred or restricted by Subsection (b) and (c) of Section 1-84 should seek the Commission's advice, in advance, pursuant to Subdivision (3) of Subsection (a) of Section 1-81 of the general statutes.

Regs. Conn. State Agencies §1-81-17.

Thus, pursuant to Conn. Gen. Stat. § 1-84(c), §1-84(b), and the regulations thereto, a state employee should not engage in outside employment with an entity which can benefit from his official state duties, nor with an entity over which he has regulatory, contractual or supervisory authority in his state capacity.  Moreover, the Commission has held that, generally, a state employee may not be paid privately to do what he is essentially already required to do as part of his state job; Advisory Opinion No. 91-11; nor may a state employee use state time, materials or personnel in furtherance of his outside work. Advisory Opinion No. 99-10.  The Commission has also held that it would be a use of office, in violation of Conn. Gen. Stat. §1-84(c), for a state employee to use his state title in a promotional brochure for his private consulting business. Advisory Opinion No. 81-5.

As stated in the Commission’s regulations, however, a state employee may use expertise, including expertise and experience acquired in state service, for financial gain as long as one’s actions do not breach Conn. Gen. Stat. §1-84(b) or §1-84(c).  Nevertheless, the Commission has required public officials to reject outside employment where the public official’s public position “lends credence to his private practice which does not arise from his expertise alone, but rather results from his use of office, however inadvertent.” Advisory Opinion No. 94-16 (member of the Connecticut Medical Examiners Board could not represent physicians during the course of investigations conducted by the Public Health Hearing Office because the member’s status would “lend credence” to his outside practice regardless of his prior expertise). 

Finally, the Commission has previously ruled that a state employee may not be paid a fee or honorarium for writing an article when the publisher selected him at least in part because of his official state position. Advisory Opinion No. 89-19; see also Advisory Opinion No. 2001-24("Application Of The Code To An Outside Position Offered By Virtue Of One's Community Prominence").

 Celebrity Status Rule

The Ethics Commission’s first formal recognition of a state employee’s or public official’s “celebrity status” came with its adoption of Advisory Opinion No. 97-14 on or about June 6, 1997.  About a year before that, in June, 1996, Ethics Commission staff, in an informal staff opinion letter (which, consistent with the Commission’s usual procedures, was not submitted to the Commission), first distinguished between a state employee’s use of his celebrity status, and the use of the employee’s state office or position for financial gain. See Request for Advisory Opinion (RAO) 1612.  In considering whether Dr. Henry Lee could accept an outside endorsement deal with SNET, the then-Managing Director and Commission Attorney wrote:

[T]he Commission has consistently held that a state employee may use his expertise but not his office for personal financial gain.  These rulings contemplate that one may gain a certain amount of celebrity deriving from his expertise.  It appears, based on the information you have provided, that Dr. Lee is using his celebrity status for personal financial gain and not his state office or position.  The identification of Dr. Lee as “Connnecticut Forensic Examiner” is permissible, since it does not identify his state position or infer that the State itself is endorsing the product.

RAO 1612 (1996).

Thereafter, on or about June 6, 1997, the full Commission adopted formal Advisory Opinion No. 97-14, which held that state employees with celebrity status may accept admission and benefits related to a charitable golf tournament – benefits that would otherwise be subject to the gift limits for a non-celebrity state employee – “in exchange for their service to the charity and participation in the event to help with its promotion.” 

The pertinent part of Advisory Opinion No. 97-14 is quoted here:


In a prior advisory opinion, the Commission ruled that a state official's invitation to participate in a charity golf tournament, which was extended solely because of his public position, did not qualify for the necessary expense exception to the Code's overall gift limitations. Ethics Commission Advisory Opinion No.95-18, 57 CLJ 19, p. 7E, (11/7/95). The Commission would not allow the receipt of expenses in situations where the only activity is participation in the underlying charity event ~ as a player in a golf or tennis tournament. Id.  In this case, however, the state employee is not being invited solely because of his state position and is not representing the University or required to participate as part of his or her state responsibilities.  Rather, the individual is being invited to participate because of his celebrity status.  It is not germane that this celebrity status may have been derived through his or her state accomplishments. This interpretation is consistent with analogous Commission precedent which allows a state employee to use his expertise, but not his office, for outside employment opportunities, even if such expertise is gained from state service.  This celebrity status applies to a very limited number of University employees.  The individual must be well or widely known and easily recognizable by the general public.  Two examples are Coaches Jim Calhoun and Geno Auriemma, whose celebrity status is confirmed by their outside commercial endorsements.

Therefore, if the state employee does, in fact, have such celebrity status, then he or she may participate in these tournaments without concern for the Code's gift limitations.[2]  This would be the case even if the sponsoring organization was a registered lobbyist.  Although the gift limits do apply whether such gifts are given for lobbying or nonlobbying purposes, as long as the individuals received the same benefits as all other celebrity participants, the benefits received would not be deemed gifts but rather items in exchange for their service to the charity and participation in the event to help with its promotion.

If the public official or state employee does not have celebrity status, then the Code's gift provisions are applicable. . . .

(Emphasis added.) Advisory Opinion No. 97-14, pp. 11-12.

Since that time, the celebrity status rule has been restated in other formal advisory opinions of the Commission.  In particular, Advisory Opinion No. 99-22 (“Publication Related To A State Employee’s Official Duties”) states:

It should be noted that the Commission has previously ruled that a state employee could not be paid for writing an article when the publisher selected him because of his official position. See, Ethics Commission Advisory Opinion No. 89-19, 51 Conn. L.J. No. 7, p. 2C (August 15, 1989).  In this case, the publishing company is willing to promote the sale of this book because of Coach Calhoun’s accomplishments and his celebrity status.  In a prior advisory opinion regarding the application of the gift limits under the Code, the Commission recognized that Coach Calhoun is frequently invited to participate in events because of his celebrity status. Ethics Commission Advisory Opinion No. 97-14, 59 Conn. L.J. No. 4D (July 1, 1997).  The Commission ruled that it is not germane that this celebrity status may have been derived through his state accomplishments and determined that certain aspects of the gift rules did not apply. Id.  Similarly, it is not an impermissible use of office, under §1-84(c), for a state employee with celebrity status to receive compensation for writing a book describing his own accomplishments.  If Coach Calhoun were to leave the University, the publisher would still want to publish the book.  Therefore, it follows that his state position in no way lends additional credibility to the publication.  Rather, it is Coach Calhoun’s celebrity which makes this book marketable. (Compare Advisory Opinion No. 89-19, supra, in which the publisher stated that the individual’s state position was important to add credibility to the article). 

Finally, the use of the word “UCONN” in the title of the book is also permissible.  It is clear that UCONN is not endorsing the book or otherwise involved in its publication.  Since it is permissible for Coach Calhoun to receive compensation for writing the book about the championship season, it would be unreasonable to ban the use of the word “UCONN”.

(Emphasis added.) Advisory Opinion No. 99-22.

Moreover, in Advisory Opinion No. 2000-9 (“Application Of The Code To Bonus Payment Clauses In UConn Coaches’ Consultant Contracts”), the Commission stated:

In essence, the Commission has allowed the coaches to benefit from the prominence that results from their professional success.  At the same time, the Commission has prohibited any agreement that impairs independence of judgment or necessitates the inappropriate use of public position in violation of Conn. Gen. §§1-84(b) or (c).  Thus, for example, the Commission has refused to sanction clauses in consultant contracts which mandate that the university coach:  insure that his or her assistants or players use the products of the Company; represent the Company in its efforts to obtain University licensing or marketing agreements; or require the team to participate in Company sponsored trips or tournaments.

(Emphasis added.) Advisory Opinion No. 2000-9.

Therefore, at least as articulated, the Commission intended the so-called “celebrity status” rule to permit use of one’s celebrity status – even celebrity status derived from his state office or position -- in the same manner as a state employee or public official may use his expertise for financial gain:  that is, so long as it doesn’t violate any other provision of the Code of Ethics for Public Officials. See Regs. Conn. State Agencies §1-81-17.  In fact, at least as expressed, the celebrity rule is not an exception at all, because, as stated in Advisory Opinion No. 2000-11, supra, the rule still ostensibly requires any outside employment to pass muster under Conn. Gen. Stat. §1-84(c) and §1-84(b).  In other words, even if certain conduct were to be deemed a use of celebrity rather than a use of office, the Commission has indicated that said conduct must nevertheless pass muster under Conn. Gen. Stat. §1-84(b) – the outside employment statute – and the rest of the Code of Ethics for Public Officials.  Nevertheless, the Commission finds that the attention placed on the celebrity status of a state employee seeking to engage in outside employment is misplaced and not warranted by law.


There is No Statutory or Regulatory Basis for Treating Celebrity State Employees and Public Officials Differently From Other State Employees and Public Officials

Having reviewed the above-referenced opinions, the relevant statutes and regulations, and a host of other, related opinions, the Commission concludes that there is no statutory or regulatory basis for treating so-called “celebrity” state employees differently from other state employees and public officials.  Unlike the use of expertise, which is permitted under some circumstances by the Commission’s regulations; Regs. Conn. State Agencies §1-81-17; there is no corresponding provision that permits an employee to use his or her celebrity status for financial gain.

In the Commission’s opinion, reference to certain state employees’ celebrity status has altered its focus -- away from the statutory and regulatory provisions the Commission is charged with interpreting and enforcing.  The Commission wishes to return to the proper focus by restating the law as it applies to outside employment of all state employees and public officials.  Nevertheless, the Commission’s conclusion in this regard does not necessarily require that all previous “celebrity status” opinions be revoked, as many of these opinions did not need to rely upon the employee’s celebrity status.  Rather, on a prospective basis, the Commission intends that it (or its successor) will review requests for advice concerning outside employment in a manner that treats all state employees equally.  Provisions of outside employment contracts – such as, for example, those that inextricably link outside employment to one’s state employment -- that were approved in the past that potentially impair a state employee’s independence of judgment with regard to his state duties, or constitute a use of office for financial gain, will be judged anew and may be rejected in future requests for opinion. 

Of course, any and all state employees who are considering accepting outside employment, or extending, amending, renewing, etc. an existing outside employment contract, should seek the Commission’s advice in advance of doing so. Regs. Conn. State Agencies §1-81-17.

 

State employees who have existing outside employment contracts may maintain said contracts so long as there are no modifications to any material provision of such contract.  Material provisions of a contract include, but are not limited to, those provisions involving the term, compensation, financial aspects or duties described in the contract.  Extensions, renewals, or amendments of said existing contracts, however, should be reviewed by the Commission – even if only the contract term is changing -- in order to avoid the extension or renewal of a contract that may have contained arguably illegal provisions.

 

Finally, the Ethics Commission recognizes the esteem that such celebrity state employees have brought to their respective institutions, and acknowledges that they have likely been instrumental in bringing recognition to the state’s flagship University and forensic science laboratory as being among the best in their respective classes.   Nevertheless, neither the Code of Ethics for Public Officials nor its related regulations differentiates between celebrity and non-celebrity state employees and public officials.  The Ethics Commission is charged with issuing advisory opinions with regard to the requirements of the law as drafted.  If the public demands, or the legislature believes, that such a differentiation or exception for well-known state employees is warranted, the General Assembly has the ability to draft and adopt such a provision.

 By order of the Commission,

 Gary Collins

 Vice-Chairperson

Dated _June 21, 2005


[1]Conn. Gen. Stat. §1-84(b) states:  No public official or state employee shall accept other employment which will either impair his independence of judgment as to his official duties or employment or require him, or induce him, to disclose confidential information acquired by him in the course of and by reason of his official duties.

[2] It is noteworthy that immediately after the Commission adopted Advisory Opinion No. 97-14, the General Assembly, in a June, 1997 Special Session, amended the gift law to permit an exception for “admission to a charitable or civic event, including food and beverage provided at such event, but excluding lodging or travel expenses, at which a public official or state employee participates in his official capacity, provided such admission is provided by the primary sponsoring entity,” and not a third party.  Thus, some of the analysis used in A.O. 97-14 to permit celebrity coaches to participate in charitable golf tournaments as a draw for the event is no longer necessary since Public Act No. 97-6 permits any state employee or official – regardless of their celebrity status -- to attend such an event when he or she is invited in his or her official capacity by the primary sponsoring charitable entity.



Content Last Modified on 9/27/2005 10:36:13 AM