Ethics: 2009-10

ADVISORY OPINION 2009-10

 

Jurisdiction to Interpret General Statutes § 4b-4    

(Overrules Advisory Opinion Nos. 1990-2 and 1990-2 (Amended))     

 

Introduction

 

The Citizen’s Ethics Advisory Board (“CEAB”) issues this advisory opinion in response to a request submitted by Matthew Longanecker, an employee of the Department of Public Works.  Mr. Longanecker asks whether the CEAB has jurisdiction to issue advisory opinions interpreting General Statutes § 4b-4.[1]

 

Conclusion

 

We conclude that this body has no statutory authority to issue advisory opinions interpreting § 4b-4.[2] 

 

Analysis

 

In Advisory Opinion Nos. 1990-2 and 1990-2 (Amended), the State Ethics Commission (“SEC”) concluded that because it had the authority to enforce the provisions of § 4b-4 it had the “inherent authority” to interpret § 4b-4.[3]  Specifically, in Advisory Opinion 1990-2, the SEC stated: “Under . . . § 4b-4 (b), the Ethics Commission has the authority to enforce the provisions of § 4b-4.  Therefore, the Commission has the inherent authority to interpret this section of the General Statutes.”[4]  In Advisory Opinion 1990-2 (Amended), the SEC stated, “Under subsection (b) of §4b-4, the Ethics Commission is given the authority to enforce the provisions of the section. Therefore, the Commission has the inherent authority to interpret this statute.”

 

Given that this analysis was the sole basis for the SEC’s conclusion that it possessed jurisdiction to issue advisory opinions regarding § 4b-4, we reexamine that conclusion in light of its clear conflict with case law regarding the jurisdiction of administrative agencies.

 

The issue of statutory authority always is a threshold question.  It has long been the rule that administrative agencies possess only limited jurisdiction.  Administrative agencies, such as the Office of State Ethics, “are tribunals of limited jurisdiction and their jurisdiction is dependent entirely [on] the validity of the statutes vesting them with power and they cannot confer jurisdiction [on] themselves.”[5]  Thus, just as agencies have only limited jurisdiction, they are creatures of statute and must act strictly within the confines of their authorizing legislation.[6]  An administrative agency “possesses no inherent power.  Its authority is found in a legislative grant, beyond the terms and necessary implications of which it cannot lawfully function.”[7]  An agency “cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unless the statutes expressly grant it that power.”[8]

 

Pursuant to the Code of Ethics for Public Officials, the CEAB’s power to issue advisory opinions under General Statutes § 1-81 (a) (3) extends only to the requirements of “this part.”[9]  In this context, the words “this part” refers to the Code of Ethics for Public Officials, chapter 10, part I, of the General Statutes.[10]  Section 4b-4 is located in chapter 59, part I, of the General Statutes, which is outside of “this part,” as those words are used in § 1-81 (a) (3).[11]

 

Because the CEAB is not presently authorized by § 1-81 (a) (3) to issue advisory opinions interpreting § 4b-4, and because it does not (as noted above) possess any inherent power to do so, we conclude, in answer to the question posed, that it has no jurisdiction to issue advisory opinions regarding that statutory provision.  It is the view of CEAB that the legislature should review the present jurisdictional authority of the OSE with a view to expanding such authority to include interpreting provisions of § 4b-4, if that is the desire of the legislature.

 

As for Advisory Opinion Nos. 1990-2 and 1990-2 (Amended), it is our firm conviction that they were wrongly decided.[12]

 

 

 

 

By order of the Board,

 

 

                                                         G. Kenneth Bernhard, Chairperson

 

 

 

Dated October 22, 2009



[1]General Statutes § 4b-4 (a) provides: “No employee of the Properties Review Board shall hold another state or municipal position, nor shall any such employee or any nonclerical employee in the unit in the Department of Public Works which is responsible for acquiring, leasing and selling real property on behalf of the state, be directly involved in any enterprise which does business with the state or be directly or indirectly involved in any enterprise concerned with real estate acquisition or development. Each member and employee of the State Properties Review Board shall file, with the board and with the Office of State Ethics, and each such employee of the department shall file, with the department and with the Office of State Ethics, a financial statement indicating all sources of business income of such person in excess of one thousand dollars, and the name of any business with which he is associated, which shall have the same meaning as defined in section 1-79. Such statement shall be a public record. Financial statements for the preceding calendar year shall be filed with the commission on or before April fifteenth of each year if the employee or member held such a position during the preceding calendar year.”

            [2]This conclusion does not prohibit the Department of Public Works from asking the Attorney General for an interpretation of the General Statutes.

[3]Advisory Opinion No. 1990-2 was subsequently amended by Advisory Opinion No. 1990-2 (Amended). The amended opinion does not reexamine the jurisdictional question and only amends a portion of Advisory Opinion No. 1990-2.

             [4]General Statutes § 4b-4 (b) provides: “The provisions of sections 1-82, 1-82a, and 1-88 [of the Code of Ethics for Public Officials] shall apply to any alleged violations of this section.” In short, these subsections permit the OSE to conduct preliminary investigations, hold probable cause hearings, hold contested board hearings with a Judge Trial Referee, and impose penalties.

            [5](Internal quotation marks omitted.)  Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, 283 Conn. 672, 685, 931 A. 2nd 159 (2007).

            [6]Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4 (1996).

            [7](Emphasis Added.)  Adam v. Connecticut Medical Board, 137 Conn. 535, 537-38 (1951); Del Toro v. Stamford, 270 Conn. 532, 541 (2004).

            [8]Waterbury v. CHRO, 160 Conn. 226, 230 (1971).

            [9]General Statutes § 1-81 (a) (3) provides: “Upon the concurring vote of a majority of the board present and voting, issue advisory opinions with regard to the requirements of this part, upon the request of any person subject to the provisions of this part, and publish such advisory opinions in the Connecticut Law Journal. Advisory opinions rendered by the board, until amended or revoked, shall be binding on the board and shall be deemed to be final decisions of the board for purposes of appeal to the superior court, in accordance with the provisions of section 4-175 or 4-183. Any advisory opinion concerning the person who requested the opinion and who acted in reliance thereon, in good faith, shall be binding upon the board, and it shall be an absolute defense in any criminal action brought under the provisions of this part, that the accused acted in reliance upon such advisory opinion.”

            [10]See, e.g., Advisory Opinion No. 2006-8 for an application of “this part” to the Code of Ethics for Lobbyists, chapter 10, part II, of the General Statutes.

            [11] See Advisory Opinion No. 2003-7 concluding that the SEC had no authority to interpret Part III of Chapter 10.  It provides, in relevant part: “The provision in question has been codified as §1-101bb in Part III, Chapter 10, Conn. Gen. Stat. Although Chapter 10 contains the State's Codes of Ethics, the Commission, at present, only has specific authority to issue Advisory Opinions regarding Part I, The Code Of Ethics For Public Officials, and Part II, The Code Of Ethics For Lobbyists. See, Conn. Gen. Stat. §§1-81(a)(3) and 1-92(5). No such specific authority currently exists with regard to Part III, Miscellaneous Provisions. Therefore, as a preliminary matter, the Commission hereby requests that the General Assembly adopt a technical amendment to Part III rectifying this omission.”

[12]Advisory Opinion No. 2009-1 examined that standard for overturning prior advisory opinions.  This action is consistent with that standard in that it is based upon a reexamination of the issue with the advice of counsel and is conducted with the firm conviction that the prior opinions were wrongly decided.



Content Last Modified on 11/2/2009 12:05:34 PM