ADVISORY OPINION 2007-9
Interpretation of General Statutes §§ 1-82a (b) and 1-93a (b)
The Citizen’s Ethics Advisory Board (Board) issues this advisory opinion at the request of an assistant general counsel with the
The following facts are relevant to this opinion. A formal complaint under the Codes of Ethics arises in one of two ways: either the ethics enforcement officer issues a complaint after undertaking a confidential evaluation of a possible violation of the Codes of Ethics, or a person files a complaint with the
shall be confidential except upon the request of the respondent. If the investigation is confidential, the allegations in the complaint and any information supplied to or received from the
General Statutes §§ 1-82a (b) and 1-93a (b).
If a complainant discloses such information to any third party, the complainant may be subject to an
The Board has been asked the following question: What information, if any, may a complainant disclose to a third party following the filing of a formal complaint with the
To answer that question, we turn to the pertinent language in §§ 1-82a (b) and 1-93a (b):
If the investigation is confidential, the allegations in the complaint and any information supplied to or received from the
(Emphasis added.) A literal reading of that language appears to prohibit a complainant from disclosing, for example, the fact that a complaint was filed, any information gleaned from interacting with the
To illustrate the constitutional dilemma posed by the language in §§ 1-82a (b) and 1-93a (b), we turn to the Second Circuit Court of Appeals decision in Kamasinski v. Judicial Review Council, supra, 44 F.3d 106. In that case, the court addressed the constitutionality of a provision mandating confidentiality (unless and until a finding of probable cause was made) with respect to proceedings before
After listing numerous state interests served by confidentiality in the early stages of the investigation, the court concluded that the restrictions did indeed serve a compelling state interest: “The state’s interest in the quality of its judiciary, we conclude, is an interest of the highest order.”
It then turned its attention to whether the restrictions were narrowly tailored to serve that interest, explaining that federal courts analyzing the confidentiality of state investigations have indicated that disclosures made by participants in such investigations fall into three categories: (1) “the substance of an individual’s complaint or testimony, i.e., an individual’s own observations and speculations regarding judicial misconduct”; (2) “the complainant’s disclosure of the fact that a complaint was filed, or the witness’s disclosure of the fact that testimony was given”; and (3) “information that an individual learns by interacting with the JRC, such as information gained by hearing . . . comments made by members of the JRC.” (Emphasis in original.)
The court concluded that, under the first amendment, the state may prohibit an individual from disclosing information falling within the latter two categories, namely, the fact of filing a complaint or the fact that testimony was given, and information gained through interacting with the JRC.
Whether the state may prohibit the disclosure of the substance of an individual’s complaint or testimony merits little discussion. Penalizing an individual for publicly disclosing complaints about the conduct of a governmental official strikes at the heart of the First Amendment . . . and we agree with the district court that such a prohibition would be unconstitutional.
907 F.2d 440, 443 (4th Cir. 1990) (“[i]t is clear that
the first amendment, punish a person for publicly criticizing a judge”); First Amendment
Coalition v. Judicial Inquiry and Review Board, 784 F.2d 467, 479 (3d Cir. 1986) (“to the extent the Board’s regulation . . . prevent[s] witnesses from disclosing their own testimony, those directives run afoul of the First Amendment”); Kamasinski v. Judicial Review Council, 797 F. Supp. 1083, 1094 (D. Conn. 1992) (“The state’s interest in keeping confidential the contents or substance of an individual’s own complaint . . . is not adequate to resist First Amendment challenge. This information is not the creation of the JRC’s investigation, but pre-exists it.” [Emphasis in original.]).
We therefore know the following: first, that it would violate the first amendment to prohibit a complainant from disclosing the contents or substance of a complaint, and second, as noted above, that a literal reading of the provisions at issue appears to do just that. Although we “will not ordinarily construe a statute whose meaning is plain and unambiguous . . . [t]his rule of statutory construction does not apply . . . if . . . a literal reading places a statute in constitutional jeopardy.” (Citations omitted.) Moscone v. Manson, 185
In so doing, we embrace a subtle distinction recognized by Justice Scalia in United States Supreme Court decision in Butterworth v. Smith, 494 U.S. 624, 108 L. Ed. 2d 572, 110
We make a similar distinction in construing the relevant language in §§ 1-82a (b) and 1-93a (b). That is, we construe the language in those provisions not as prohibiting a complainant from disclosing the facts that form the basis of a complaint (i.e., what the complainant knew). Rather, we construe it as prohibiting a complainant from disclosing that those facts were somehow conveyed to the
This construction, we believe, not only avoids constitutional difficulties; it also accomplishes what we assume to be a major legislative purpose underlying the provisions: to prevent a complainant from enhancing the credibility of his or her allegations by invoking the name of the
Based on the foregoing, it is the opinion of the Citizen’s Ethics Advisory Board that §§ 1-82a (b) and 1-93a (b) do not prohibit a complainant from disclosing the facts that form the basis of a complaint (i.e., the facts that a complainant acquires on his or her own). Those provisions do, however, prohibit a complainant from disclosing (1) the existence of a formally-filed complaint, (2) any information acquired through interacting with the
disclosure, however, would have no impact on the legal status of his or her underlying complaint.
By order of the Board,
Patricia T. Hendel
Dated August 23, 2007
An evaluation of a possible violation of the Codes of Ethics is confidential “except upon the request of the subject of the evaluation. If the evaluation is confidential, any information supplied to or received from the
The provision in question read as follows: “Any investigation to determine whether or not there is probable cause that [misconduct] has occurred shall be confidential and any individual called by the council for the purpose of providing information shall not disclose his knowledge of such investigation to a third party prior to the decision of the council on whether probable cause exists, unless the respondent requests that such investigation and disclosure be open, provided information known or obtained independently of any such investigation shall not be confidential . . . .” Kamasinski v. Judicial Review Council, supra, 44 F.3d 109.