Advisory Opinion No. 2003-11

Application Of §1-84b(f) Of The Ethics Code To The Executive Director
Of The Arts Commission

Douglas Evans, Executive Director of the Connecticut Commission on the Arts (Arts Commission), has requested an advisory opinion regarding his post-state employment.  Specifically, Mr. Evans wishes to know whether, consistent with the post-state employment provisions of The Code Of Ethics For Public Officials, he may accept a position with Connecticut Public Broadcasting (CPB) commencing this August.

With exceptions not pertinent, the relevant Code provision reads as follows:

No former public official or state employee who participated substantially in the negotiation or award of a state contract valued at an amount of fifty thousand dollars or more . . . or . . . who supervised the negotiation or award of such a contract . . . shall accept employment with a party to the contract . . . other than the state for a period of one year after his resignation from his state office or position if his resignation occurs less than one year after the contract . . . is signed.  Conn. Gen. Stat. §1-84b(f).

During the past year, the Arts Commission has awarded the following two contracts to CPB:  1. a $641,614 grant for the HOT Schools Program (later reduced to $511,000), signed August 19, 2002; and 2. a $50,000 grant for the CULTURE CONNECT Program, signed January 7, 2003.  The HOT (Higher Order Thinking) Program develops skills in young people through the arts; and the CULTURE CONNECT Program establishes a web-based cultural events calendar for Connecticut.

On its face, the HOT Contract is in excess of one-half million dollars.  However, a closer examination of the underlying documentation reveals that, in fact, CPB received only a $30,000 management fee, with the remainder of the funds being passed through to other entities and individuals.  Under these circumstances, the Ethics Commission does not believe it is necessary, or fair, to utilize the total amount of the grant for purposes of §1-84b(f).  Alternatively, the Commission finds that the contract award to CPB was $30,000; and, hence, falls below the statutory $50,000 threshold.

The CULTURE CONNECT Contract is, however, more problematic.  In this instance, it is unarguable that the entire amount of the grant went to CPB.  While the contract amount, $50,000, is the absolute minimum set forth in §1-84b(f); it is, without question, legally sufficient to require the application of the statutory prohibition.

Furthermore, as noted supra, the contract date (January 7, 2003) falls squarely within the last year of Mr. Evans’ state service.  In this regard, the Commission takes cognizance of Mr. Evans’ assertion that the grant was actually issued on September 19, 2002, and that “paperwork” delays resulted in the January 7, 2003 signing date.  However, by its terms, §1-84b(f)’s operation is explicitly premised on the date “the contract . . . is signed.”  See also, Advisory Opinion No. 93-16, 55 CLJ No. 6,0 p. 6C (8/10/93) wherein the Commission held:  that the date the State accepted a contract by signing the document is the operative date for purposes of §1-84b(f).

Finally, the Commission cannot accept Mr. Evans’ position that he did not participate substantially in the negotiation or award of this contract because:  there was essentially no negotiation in this instance; and the award can be made only by the Arts Commission.  To the contrary, the State Ethics Commission finds that the Executive Director’s written recommendation of approval to the citizen members of the Arts Commission clearly constitutes substantial participation in the award of the contract in question.

In summary, given that Mr. Evans has substantially participated in the award of a contract valued at $50,000 to CPB during his last year of state service, he may not, for one year after his resignation, accept employment with that entity or either an employee or independent contractor.

By order of the Commission,

Rosemary Giuliano
Chairperson