Ethics: 2009-4

  

ADVISORY OPINION 2009-4

 

Application of General Statutes § 1-80 (b) to Members of the Citizen’s Ethics Advisory Board Running for Local Elective Office

 

Introduction

 

            The Citizen’s Ethics Advisory Board issues this advisory opinion at the request of one of its members.  He asks whether he is prohibited from running for local elective office by virtue of General Statutes § 1-80 (b), under which “[n]o member or employee of such board shall . . . hold or campaign for any public office . . . .”

 

Question

 

            We consider whether local elective office is a “public office” for purposes of § 1-80 (b).

 

Conclusion

 

            We conclude that local elective office is a “public office” for purposes of § 1-80 (b), meaning that members of the Citizen’s Ethics Advisory Board may not hold or campaign (i.e., be a candidate) for such office.    

 

Analysis  

 

As noted above, under § 1-80 (b), members of the Citizen’s Ethics Advisory Board may not “hold or campaign for any public office . . . .”  There can be little doubt that local elective office is a “public office” for some purposes, unless we simply ignore the ordinary meaning of that term.[1]  But the question here is whether local elective office is a “public office” within the meaning of § 1-80 (b).  Because “public office” was left undefined in the Code of Ethics for Public Officials (“Code”), our task is to determine what the legislature meant by use of that term in § 1-80 (b).

 

We begin this task by noting, as did one court, that there “are in legal parlance probably few words that have a greater variety of meanings, or shades of meaning, than the [word] ‘office’ . . . .”[2]  Although adding the word “public” to the mix (i.e., “public office”) reduces the possible shades of meaning, the task of defining this term is only slightly less difficult. 

 

Indeed, “[t]he words ‘public office’ are used in so many senses that the courts have affirmed that it is hardly possible to undertake a precise definition which will adequately and effectively cover every situation.”[3]  That is, the term “public office,” “as used in certain statutes . . . may include certain positions . . . which would not be embraced within the meaning of the same words used in other statutes . . . .”[4]

 

To illustrate, here are three definitions of “public office”—the first taken from a municipal provision, the second from a state provision, and the third from a federal provision—each definition more expansive than the one that precedes it:

 

·        “‘Public office’ means any elective office of the City.”[5]

 

·        “‘Public office’ includes any office in the government of this State or any of its political subdivisions filled at elections by the electors of the State or political subdivision.”[6]

 

·        “The term ‘public office’ includes any elective or appointive office of the United States or any possession thereof, of the District of Columbia, of a State or its political subdivisions, or a wholly-owned instrumentality of any one or more of the foregoing. . . .”[7]

 

So: Did the legislature intend the term “public office,” as it is used in § 1-

80 (b), to encompass every public position, be it elective or appointive, from the President of the United States to the local sheriff (as does the latter provision)?  Or did it intend the term to have a more limited reach (as do the former provisions)?  The answer must be found in the specific context in which the term “public office” is used.[8]

 

That said, we turn to the language of § 1-80 (b), where we find the qualifications for membership on the Citizen’s Ethics Advisory Board:

 

All members shall be electors of the state. No member shall be a state employee.  No member . . . shall (1) hold or campaign for any public office; (2) have held public office or have been a candidate for public office for a three-year period prior to appointment; (3) hold office in any political party or political committee or be a member of any organization or association organized primarily for the purpose of influencing legislation or decisions of public agencies; or (4) be an individual who is a registrant as defined in subsection (q) of section 1-91 [i.e., a registered lobbyist].[9]

 

This language was first addressed in a 1979 Attorney General Opinion, which we feel compelled to address, given that it deals with the very issue before us—namely, whether the term “public office” in § 1-80 (b) includes local elective office—and given that we wholeheartedly disagree with its conclusion.[10] 

 

In that opinion, after noting the absence of a definition of “public office” in the Code, the Attorney General looked to the Code’s definitions of two other terms, “candidate for public office” and “public official.”[11]  The former was (and still is) defined as follows:

 

“Candidate for public office” means any individual who has filed a declaration of candidacy or a petition to appear on the ballot for election as a public official, or who has raised or expended money in furtherance of such candidacy for, or who has been nominated for appointment to serve as a public official.”[12] 

 

The latter was defined, in relevant part:

 

“Public official” means any statewide elected officer, any member or member-elect of the general assembly, any person appointed to any office of the legislative, judicial or executive branch of state government by the governor, with or without the advice and consent of the general assembly and any person appointed or elected by the general assembly or either house thereof . . . .[13]

 

Those definitions, according to the Attorney General, make it clear “that a public office for purposes of [the Code] is one at the state, as opposed to local, level.”[14]   He concluded therefore that the term “public office” in § 1-80 (b) does not include local elective office, noting that “[t]his is consistent with the scope of the [Code’s] application since it does not regulate political conduct on other than a statewide level.”[15]  “The restrictions of Section 1-80 (b),” he finished, “are aimed, at least in part, at preventing the conflict of having individuals who are subject to scrutiny by the ethics commission from serving as members thereof.”[16]                  

 

We disagree not only with the Attorney General’s statutory argument, but also with his articulation of the purpose underlying § 1-80 (b). 

 

First then, to his statutory argument, which appears to be this: Because § 1-80 (b) expressly uses the term “candidate for public office,” a Code-defined term that is limited to the state level, the term “public office” must also be limited to the state level.  However, this argument ignores the context in which the term “candidate for public office” is used.  As noted in the prefatory language in the Code’s definition section: “the following terms, when used in this part, shall have the following meanings unless the context otherwise requires . . . .”[17]   Here, the context in which the term “candidate for public office” is used (i.e., the language of § 1-80 (b)) suggests that it was used simply to express the past tense of the term “campaign.”  That is, in subdivisions (1) and (2) of § 1-80 (b), a board member may not “hold” (present tense) or “have held” (past tense) public office; nor may a board member “campaign” for public office (present tense) or “have been a candidate for public office” (past tense).  Thus, the term “candidate for public office,” as it is used in the context of § 1-80 (b), necessarily has a different meaning than that in the definition section.

 

Turning now to the purpose underlying the restrictions in § 1-80 (b),[18] the Attorney General articulated it in these terms: “The restrictions of Section 1-80 (b) are aimed, at least in part, at preventing the conflict of having individuals who are subject to scrutiny by the ethics commission from serving as members thereof.”[19]  But had that been the legislature’s intent, it presumably would have prohibited “state employees”—who most certainly are subject to scrutiny by the ethics commission—from serving as members thereof.  But when enacting § 1-80 (b) in 1977, it did not do so.[20]  In fact, the chairperson of the State Ethics Commission just prior to it being dismantled was a “state employee” and thus subject to its scrutiny.  It was not until 2005 that the legislature placed language in § 1-80 (b) prohibiting “state employees” from serving as members of the Citizen’s Ethics Advisory Board.[21]   

 

So if not that, then what was the legislature’s intent back in 1977 when

enacting § 1-80 (b)?  To answer that question, we look to the only advisory opinion issued by the State Ethics Commission to address the language in § 1-80 (b).[22]  There, the question was whether that provision prohibits an individual who is a Justice of the Peace from serving on the ethics commission.[23]  Though Justices of the Peace were not subject to the Code of Ethics for Public Officials (i.e., they were not subject to the ethics commission’s scrutiny), the State Ethics Commission concluded, for reasons not pertinent to our inquiry, that the position of Justice of the Peace is a “public office,” and therefore that an individual holding that position could not serve on the ethics commission.[24]  In doing so, it noted that the legislative intent in adopting the restriction at issue was that Commission members “not be associated with political office . . . .”[25] 

 

            The statement that Commission members “not be associated with political office” was made by Representative Patricia Hendel, one of the sponsors of the bill that established the State Ethics Commission in 1977.  Another of the bill’s sponsors, Senator Audrey Beck, who brought the bill to the floor, said this in her introductory comments: 

 

This independent ethics commission [is] to have so severed its ties with the political process that no member may serve who has . . . held public office or been a candidate for the three preceding years. . . . The most important aspect of this commission, therefore, is that it has no ties with the public process in terms of tenure of its membership.[26] 

 

And in a public hearing held by the Government Administration and Policy Committee, Marc Caplan, the director of the Connecticut Citizen Action Group, remarked on  

 

[t]he fact that in Section 2, the Ethics Commission will be completely independent.  Influence from any branch of government that from party politics, it should be completely removed from partisan politics which it is and that is an outstanding feature of this bill.[27] 

 

Those comments led the Office of Legislative Research[28]—which was asked in 1994 to opine on certain language in § 1-80 (b)—to say this: “it seems apparent that a member of the Ethics Commission cannot run for office while serving on the commission . . . .”[29]  And this: “General references to the commission and its makeup indicate that the legislature’s intention was to create a commission unencumbered by partisanship.”[30]

That the legislature’s intent was to create a commission “unencumbered by partisanship” makes abundant sense in light of the prohibition in § 1-80 (b) (3) on board members holding “office in any political party or political committee.”  There is no other apparent reason for such a restriction, given that individuals who hold office in a political party [31] or political committee[32] are not subject to the Code of Ethics for Public Officials (i.e., they are not subject to scrutiny by the ethics commission) by virtue of holding such office.

            All of this leads us to conclude that, in enacting § 1-80 (b), the legislature intended the term “public office” to include only elective office[33]—be it municipal, district, state, or federal.[34]  To limit the term to state elective office would be to ignore the legislature’s clear attempt to keep partisanship (to the extent possible) from infecting the state’s ethics body.    

 

Accordingly, it is the opinion of the Citizen’s Ethics Advisory Board that its members are prohibited by § 1-80 (b) from holding or campaigning (i.e., being a candidate) for local elective office.[35]

 

By order of the Board,

 

 

 

Dated May 28, 2009                                                    Robert Worgaftik, Chairperson



[1]Black’s Law Dictionary (Abridged 6th Ed. 1991) defines “public office” as follows: “Essential characteristics of ‘public office’ are: (1) authority conferred by law, (2) fixed tenure of office, (3) power to exercise some portion of sovereign functions of government; key element of such test is that ‘officer’ is carrying out sovereign function.”

 

 

[2]Harrington v. State ex rel. Van Hayes, 200 Ala. 480, 481, 76 So. 422 (1917).

[3]Bennett v. Superior Court of Placer County, 131 Cal. App. 2d 841, 843, 281 P.2d 285 (1955).

[4]Harrington v. State ex rel. Van Hayes, supra, 200 Ala. 481.

[5]Seattle Municipal Code § 2.04.010.26

[6]N.J.S.A. 19:1-1.

[7]26 C.F.R. § 1.1402 (c)-2.

[8]When construing a statute, we look first to its text and its relationship to other statutes, and if, after doing so, “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.”  General Statutes § 1-2z.

[9](Emphasis added.)

[10]See Opinions, Conn. Atty. Gen. (June 4, 1979). 

[11]Id.

[12]Id. 

[13]Id.  The definition of “public official” has since been broadened.  See General Statutes § 1-79 (k).  

[14]Opinions, Conn. Atty. Gen. (June 4, 1979).  

[15]Id.

[16]Id.

[17](Emphasis added.)  General Statutes § 1-79.

[18]When a statute is not plain and unambiguous, we seek interpretive guidance from extrinsic aids, including, for example, the statute’s legislative history and the legislative policy it was designed to implement.  See State v. Lutters, 270 Conn. 198, 205, 853 A.2d 434 (2004).  Here, the statute is not plain and unambiguous.  Thus, we look to its legislative history and the purpose underlying it.

[19]Opinions, Conn. Atty. Gen. (June 4, 1979).   

[20]See Public Acts 1977, No. 77-600. 

[21]See Public Acts 2005, No. 05-183, § 2.  The fact that the legislature, in 2005, prohibited “state employees” from serving on the Citizen’s Ethics Advisory Board has no bearing on the intent of the legislature back in 1977 when enacting § 1-80 (b). 

[22]See Advisory Opinion No. 95-7.

[23]Id.

[24]Id.

            [25](Emphasis added.)  Id., citing 20 H.R. Proc., Pt. 15, 1977 Sess., p. 209.  

[26](Emphasis added.)  20 S. Proc., Pt. 8, 1977 Sess., p. 3276. 

[27](Emphasis added.)  Government Administration and Policy Committee Hearings, Pt. 2, 1977 Sess., p.707.  “Hearings before legislative committees are a recognized source of legislative history.”  Toise v. Rowe, 243 Conn. 623, 707 A.2d 25 (1998) (relying on testimony of nonlegislator at public hearing as sole source of legislative history in interpreting public act).  Here, we need not rely solely on Mr. Caplan’s comments, as we also have those of Representative Hendel and Senator Beck, all of which are consistent.     

[28]On its website, the Office of Legislative Research describes its mission as follows: “The nonpartisan Office of Legislative Research helps the General Assembly make policy and serve the public by providing it with accurate, timely, and objective research, policy analysis, and assistance in the development of legislation.”  http://www.cga.ct.gov/olr/

[29]Office of Legislative Research, Research Report, January 10, 1994, 94-R-0163.

[30](Emphasis added.)  Id.

[31]With respect to the prohibition in § 1-80 (b) (3) on board members holding “office in any political party,” we adopt the definition of “political party officer” in General Statutes § 9-7a: “‘political party officer’ means an officer or member of a national committee of a political party, state central or town committee, or any person employed by any such committee for compensation.”

[32]With respect to the prohibition in § 1-80 (b) (3) on board members holding office in a “political committee,” we adopt the definition of that term in General Statutes § 9-601 (3): “‘Political committee’ means (A) a committee organized by a business entity or organization, (B) persons other than individuals, or two or more individuals organized or acting jointly conducting their activities in or outside the state, (C) an exploratory committee, (D) a committee established by or on behalf of a slate of candidates in a primary for the office of justice of the peace, but does not mean a candidate committee or a party committee, (E) a legislative caucus committee, or (F) a legislative leadership committee.” 

[33]Although certainly not authoritative, and of “only marginal, if any, value”; United States ex rel. Long v. SCS Bus. & Tech Inst., Inc., 173 F.3d 870, 878 (D.C. Cir. 1999); one post-enactment legislative statement (a.k.a. “legislative future”) supports our understanding.  That is, in 2004, when discussing a public act that would increase the membership of the State Ethics Commission, Senator Donald DeFronzo stated:  “I believe there are certain classifications of individuals who are precluded from serving on the Ethics Commission now . . . .  I believe there’s a blackout period for former elected officials . . . .”  (Emphasis added.)  47 S. Proc., Pt. 6, 2004 Sess., pp. 1701-02.  

[34]For purposes of defining municipal, district, and state office, we adopt the definitions of those offices in subsections (4), (7), and (14) of General Statutes § 9-372.   

[35]This prohibition applies equally to employees of the Office of State Ethics.  See General Statutes § 1-80 (b) (“No member or employee of such board shall (1) hold or campaign for any public office” [emphasis added]).



Content Last Modified on 5/28/2009 9:43:20 PM