Ethics: Advisory Opinion 2006-1

ADVISORY OPINION 2006-1

 

Application of Code of Ethics for Public Officials to Members of Stem Cell Research Advisory Committee

 

 

INTRODUCTION

 

The Citizen’s Ethics Advisory Board issues this advisory opinion in response to a request submitted by the ethics liaison for the state Department of Public Health (DPH).  In that request, the ethics liaison asked how the Code of Ethics for Public Officials, chapter 10, part 1, of the General Statutes (Code of Ethics), applies to members of the Stem Cell Research Advisory Committee who are employed by, or sit on the boards of, institutions that submit applications for grants-in-aid from the Stem Cell Research Fund.

 

RELEVANT FACTS

 

The following facts, presented by the ethics liaison for DPH, are relevant to this opinion.  Under Public Acts 2005, No. 05-149 (P.A. 05-149), the state legislature established a Stem Cell Research Advisory Committee (advisory committee).  Its mission: to “work to advance embryonic and human adult stem cell research.”  P.A. 05-149, § 3 (c).  To fulfill that legislative directive, the advisory committee is mandated, among other things, to “establish and administer, in consultation with the Commissioner of Public Health, a stem cell research grant program which shall provide grants-in-aid to eligible institutions for the advancement of embryonic or human adult stem cell research in this state . . . .”[1]  P.A. 05-149, § 3 (e) (3).

 

In establishing the grant program, the advisory committee, with the assistance of Connecticut Innovations, Incorporated (a quasi-public agency), will develop an application by which eligible institutions[2] may submit proposals to be considered for funding.  P.A. 05-149, §§ 2 (b) and 3 (f).  Once the applications are received from eligible institutions, a five-member Stem Cell Research Peer Review Committee[3]—which is currently composed of out-of-state individuals, including two international researchers—will review the ethical and scientific merit of each proposal and recommend funding to the Commissioner of Public Health and the advisory committee.  P.A. 05-149, § 4 (c).  After considering those recommendations, the advisory committee will direct the Commissioner of Public Health with respect to the awarding of grants-in-aid from the Stem Cell Research Fund; P.A. 05-149, § 2 (b); which is funded at $20 million through June 2007.  The advisory committee may award grant funds to a single institution or to multiple institutions, and institutions may receive different amounts depending on the nature of their proposals.

      

Given the advisory committee’s specialized mission, the legislature prescribed that its nine members have particular backgrounds and expertise.  P.A. 05-149, § 3 (a).  Specifically, in addition to the Commissioner of Public Health, the nine-member advisory committee must be comprised as follows:

 

  • One member must be nationally recognized as an active investigator in the field of stem cell research.
  • One member must have background and experience in the field of bioethics.
  • Two members must have background and experience in private sector stem cell research and development.
  • Two members must be academic researchers specializing in stem cell research.
  • One member must have background and experience in either private or public sector stem cell research and development or related research fields.
  • One member must have background and experience in business or financial investments.[4]

According to P.A. 05-149, § 3 (d), “[a]ll [advisory committee] members shall be deemed public officials and shall adhere to the code of ethics for public officials set forth in chapter 10 of the general statutes.”  They are also subject to the following language set forth in P.A. 05-149, § 3 (d): 

 

No member shall participate in the affairs of the committee with respect to the review or consideration of any grant-in-aid application filed by such member or by any eligible institution in which such member has a financial interest, or with whom such member engages in any business, employment, transaction or professional activity.    

 

QUESTION

 

How does the Code of Ethics apply to advisory committee members who are employed by, or sit on the boards of, institutions that submit applications for grants-in-aid from the Stem Cell Research Fund?

 

ANALYSIS

 

The public act that created the advisory committee subjects its members to the requirements of the Code of Ethics, which includes, in General Statutes § 1-84 (b), a ban on outside (i.e., simultaneous non-state) employment[5] that impairs independence of judgment.  Specifically, under § 1-84 (b), a public official may not engage in outside employment that will impair his or her independence of judgment as to state duties.  That conflict-of-interest provision, generally, is violated when a public official engages in outside employment with an entity that can benefit from the state servant’s official actions—for example, the public official, in his or her state capacity, has specific regulatory, contractual or supervisory authority over his or her outside employer.  Regs., Conn. State Agencies § 1-81-17. 

 

In the case at hand, advisory committee members who are employed by, or paid board members of, institutions that submit applications for grant funds clearly would be engaging in outside employment with entities that could benefit from their official actions.  Indeed, they have the ability not only to dole out millions of dollars in grant funds to eligible institutions, but also to supervise the research conducted by those institutions.  See P.A. 05-149, § 3 (e) (3) and (4).  Accordingly, such outside employment would constitute a violation of the § 1-84 (b) ban on outside employment that impairs independence of judgment—unless, that is, the legislature is considered to have waived that provision.

 

It is the opinion of the Citizen’s Ethics Advisory Board that the legislature did not intend to waive the § 1-84 (b) ban on outside employment that impairs independence of judgment.  Where the legislature intends to waive § 1-84 (b), it has clearly specified that intent in the enabling legislation.  The following two examples demonstrate a legislative intent to grant such a waiver:

 

Example One:  The public act that created the advisory committee is similar to the enabling statutes of some of Connecticut’s quasi-public agencies, in that the appointment provision specifies that its members must possess specific backgrounds or expertise.  It is dissimilar in one key respect: it does not exempt its members from certain conflict-of-interest provisions in the Code of Ethics, such as § 1-84 (b).

 

For instance, in the enabling legislation for the Connecticut Development Authority (CDA), a quasi-public agency that offers business assistance to companies, the legislature mandated that certain members of CDA’s board of directors “be experienced in the field of financial lending or the development of commerce, trade and business . . . .”  General Statutes § 32-11a (c).  In addition, the legislature explicitly exempted those members from certain conflict-of-interest provisions in the Code of Ethics.  Specifically, the legislature provided, in relevant part, as follows: 

 

Notwithstanding any provision of the law to the contrary, it shall not constitute a conflict of interest for a trustee, director, partner, officer, stockholder, proprietor, counsel or employee of any person,[6] or for any other individual having a financial interest in any person, to serve as a member of the board of directors of the authority . . . . 

 

(Emphasis added.)  General Statutes § 32-11a (h). 

 

The highlighted language in that provision, in effect, waives § 1-84 (b) and places the issue of outside employment beyond the jurisdiction of the Citizen’s Ethics Advisory Board.  For example, despite the § 1-84 (b) ban on outside employment that impairs independence of judgment, it would be permissible for a member of CDA’s board of directors also to be employed by an entity over which CDA has some authority (that is, an entity that receives business assistance from CDA).   

 

 Similar waiver language is missing from the analogous provision in the public act that created the stem cell research advisory committee, which provides, in relevant part, as follows:  All members [of the stem cell research advisory committee] shall be deemed public officials and shall adhere to the code of ethics for public officials set forth in chapter 10 of the general statutes.”  (Emphasis added.)  P.A. 05-149, § 3 (d).  That provision, unlike its counterpart in CDA’s enabling legislation, does not expressly exempt advisory committee members from certain conflict-of-interest provisions in the Code of Ethics, including § 1-84 (b).  To the contrary, it expressly mandates that they adhere to the requirements of the Code of Ethics—seemingly without exception.  

 

Example Two:  On occasion, the legislature will specify that certain members of state boards, commissions, councils, etc., are to be selected from entities with built-in conflicts of interest.  When it does so, “the legislature is considered to have waived any inherent impairment of independence of judgment which might exist under . . . § 1-84 (b).”  Advisory Opinion No. 93-1.  The justification being that “the source of the very expertise which the legislature has deemed important to the performance of the state office is the otherwise problematic outside employment.”  Id.   

 

Generally, the legislature is explicit when members of state boards, commissions, councils, etc., are to be selected from entities with built-in conflicts of interest—that is, when a “member is to come from the business, industry or other activity over which the board or commission has some authority.”  (Emphasis added.)  Advisory Opinion No. 80-20.  For instance:

 

·        In General Statutes § 17-155ff,[7] the legislature specifically designated the Commissioners of Corrections and of Mental Health to be members of the Alcohol and Drug Abuse Commission, “knowing that they head[ed] state agencies receiving funds from the body to which they were appointed.”  Advisory Opinion No. 80-20.  

·        In Special Act 01-1, the legislature specifically designated “the chief executive of one of [Waterbury’s] employee unions” to be a member of the Waterbury Financial Planning and Assistance Board, which possessed “the authority to approve or reject all collective bargaining agreements for [the city’s] unions.”  Advisory Opinion No. 2003-18. 

·        In General Statutes § 51-51k, the legislature specifically designated attorneys-at-law admitted to practice in Connecticut to be members of the Judicial Review Council, which regulates state judges, thereby authorizing the attorneys/Council members to practice before those whom they regulate.  Advisory Opinion No. 93-1. 

 

In the present case, apart from the Commissioner of Public Health, there is not a single specifically-designated member of the advisory committee.  It is true that the other members must possess specific backgrounds and expertise: for example, two members must be academic researchers specializing in stem cell research.  Nevertheless, unlike the examples above, there is nothing to indicate that those members are to “come from the business, industry or other activity over which the board or commission has some authority.”  (Emphasis added.)  Advisory Opinion No. 80-20.   

 

            As demonstrated above, when the legislature intends to waive certain conflict-of-interest provisions in the Code of Ethics, such as § 1-84 (b), it clearly manifests that intent in the enabling legislation.  In the case at hand, the legislature did not do so—at least not consistent with past precedent.  Accordingly, it is reasonable to conclude that, in determining how to award the millions of dollars allocated to stem cell research, advisory committee members are to be “free of entanglement” with entities seeking grants from the Stem Cell Research Fund.  See Advisory Opinion No. 80-20. 

 

It may be argued that the problem would disappear if each advisory committee member simply abstained from taking official action with respect to the application submitted by his or her outside employer.  We disagree.  The advisory committee provides grants-in-aid from a limited pool of funds.  Other eligible institutions “competing for the same funds would have reason to be apprehensive about the objectivity [i.e., independence of judgment] of a person who, if [he or she] authorizes funds for them, is depleting the monies available” to the entity by which he or she is employed.  See id.  “No matter how honest or selfless one’s motives may be, it is impossible to maintain an appearance of fairness and impartiality in such a situation, or to convince the public that all public decisions are being made for the public good.”  Id.  

 

Our conclusion is supported by the legislative history of the public act that created the advisory committee (P.A. 05-149), which suggests a legislative intent to “make sure” that advisory committee members are free of conflicts of interest.  Specifically, the legislative history contains the following dialogue between Senators Catherine W. Cook and Christopher S. Murphy:

 

 “[Senator Cook]:  Thank you very much, Mr. President. . . .  Through you, just for legislative intent, I have a couple of questions I wish to pose to Senator Murphy, if I may.

 

“[The Chair]:  Please proceed, Senator.

 

“[Senator Cook]:  Thank you very much.  Through you, Senator Murphy, just wanted to be clear that the stem cell research peer review committee, and the stem cell research advisory committee have appointees by various authorities.  Is there any restriction on who those appointees are?  For instance, researchers or people familiar with this technology from Mount Sinai, from Columbia, other places where we would not have concerns about crossing the conflict of interest, about who’s receiving money and who’s deciding who’s going to get that money.  Would it be possible for outsiders?

 

“[The Chair]:  Senator Murphy.

 

“[Senator Murphy]:  Thank you.  Through you, Mr. President, yes, and I think that’s been one of the important contributions from yourself and Representative Wasserman in the House to make us aware, obviously, of the expertise and benefit that could be provided to either of these two statutory committees from experts outside of the state.  Not only is the research community fairly small, and so it’s important to be able to go outside our boundaries, but also, as you said, to make sure that we have no ethical conflicts within these boards.  Although there is specific language here mandating that anyone on these Boards exempt themselves from proceedings having to do with their institution, it certainly would seem important to me to look outside the state to make sure that’s the case.”  (Emphasis added.)  48 S. Proc., Pt. 10, 2005 Sess., pp. 3071-72.   

 

 To remain true to that legislature directive—that is, to ensure that members of the advisory committee are free of conflicts of interest—it is the opinion of the Citizen’s Ethics Advisory Board that advisory committee members should not also be employed by, or paid board members of, institutions that submit applications for grant funds.   

 

CONCLUSION

 

            It is the opinion of the Citizen’s Ethics Advisory Board that, in accordance with the § 1-84 (b) ban on outside employment that impairs independence of judgment, members of the stem cell research advisory committee should not also be employed by, or paid board members of, institutions that submit applications for grants-in-aid from the Stem Cell Research Fund. 

 

To the extent that any past opinion issued by the former State Ethics Commission conflicts with this opinion, it is hereby overruled.

 

 

By order of the Board,

 

Patricia T. Hendel

Chairperson

 

 

Dated 4/6/06



[1]Other mandated duties of the advisory committee include: developing a donated funds program to encourage alternate (i.e., non-state) funding sources; advancing in-state embryonic and adult stem cell research by way of business development; and monitoring the research conducted by institutions that receive grants-in-aid.  P.A. 05-149, § 3 (e) (1), (2), and (4).

[2]“‘Eligible institution’ means (A) a nonprofit, tax-exempt academic institution of higher education, (B) a hospital that conducts biomedical research, or (C) any entity that

conducts biomedical research or embryonic or human adult stem cell research.”  P.A. 05-149, § 1 (a) (6). 

[3]Members of the Stem Cell Research Peer Review Committee (peer review committee) are appointed by the Commissioner of Public Health.  P.A. 05-149, § 4 (a).  Each member is considered a “public official” and, therefore, subject to the requirements of the Code of Ethics.  P.A. 05-149, § 4 (b).  Members are also subject to additional conflict-of-interest language set forth in P.A. 05-149, § 4 (b).

[4]Those eight members of the advisory committee are appointed by the Governor and by various leaders of the General Assembly.  

[5]The former State Ethics Commission determined that, “[b]ecause of the emphasis on the problem of private gain throughout the Code [of Ethics], it seems reasonable to confine ‘employment’ to work which is compensated—involving outside income, not just outside activity.”  Advisory Opinion No. 80-18.         

[6]Under General Statutes § 32-23d (s), the term “Person” is defined as “any person, including individuals, firms, partnerships, associations, cooperatives, limited liability companies or corporations, public or private, for profit or nonprofit, organized or existing under the laws of the state or any other state, and, to the extent otherwise permitted by law, any municipality, district, including any special district having taxing powers, agency, authority, instrumentality, or other governmental entity or political subdivision in the state.” 

[7]Section 17-155ff has been repealed.



Content Last Modified on 4/28/2006 11:48:41 AM