Advisory Opinion No. 1993-10

Application Of Code Of Ethics To Department Of
Income Maintenance Investigator’s Proposed Outside
Employment As Consultant On DIM Policy

Mr. Kim Kirchner, a Lead Investigator for the Resource Unit (“Resource”) of the Department of Income Maintenance (“DIM”), has asked whether the Code of Ethics for Public Officials, Conn. Gen. Stat. §1-79 et seq., prohibits him from accepting outside employment advising people on how to fill out applications for Title Nineteen convalescent care benefits.

Mr. Kirchner indicates that DIM’s Intake Unit (“Intake”) is the arm of DIM which initially reviews the Title Nineteen forms and requests further specific documentation if necessary.  Mr. Kirchner states that Resource becomes involved if Intake makes a referral requesting evaluation of, for example, ownership of real or personal property, assets over the allowed limit and/or transfer of assets.  The referral is made on a specified form, and Resource is not necessarily required to view the original Title Nineteen application.  Resource responds with advice and recommendations.  For example, Mr. Kirchner states, Intake might request that a lien be placed on a particular piece of real property.  Resource will perform a title search, respond with information to Intake, and then wait for approval to record the lien.

Mr. Kirchner also indicates that, as a Lead Investigator, he may be called upon to investigate applicants who may have made fraudulent representations in an effort to obtain benefits.

Mr. Kirchner would like to start a consulting business to advise those who are seeking Title Nineteen benefits.  In particular, he would like to help them fill out the forms, advise them concerning documentation, and assist in the interpretation of DIM policy.  He would also like to provide similar advice to an attorney who represents potential Title Nineteen recipients and/or their families.  In an attempt to avoid a conflict of interest under the Code, Mr. Kirchner is willing to advise the attorney about specific situations without knowing the names of the clients.

Finally, Mr. Kirchner has stated that he would refrain from reviewing any of the applications which he had helped to prepare, but that it is unlikely that DIM can entirely avoid giving him Title Nineteen casework.  In fact, DIM’s Personnel Administrator has indicated that DIM cannot restrict or alter Mr. Kirchner’s workload to avoid a conflict with his proposed outside employment.

The State Ethics Commission has considered similar outside employment situations on many occasions, and has found that a number of problems may arise.  See, for example, State Ethics Commission Advisory Opinion No. 89-17, 50 Conn. L.J. No. 52, p.10C (3/24/92) and Advisory Opinion No. 92-6, 53 Conn. L.J. No. 39, p.3E (6/27/89).  Under the Code of Ethics, although a state employee may use expertise acquired in state service in his outside employment, he may not accept outside employment which will impair his independence of judgment as to his state duties, or require him or induce him to disclose confidential information garnered from state work.  Conn. Gen. Stat. §1-84(b).  Also, a state employee may not use his office for personal financial gain.  Conn. Gen. Stat. §1-84(c).

The facts presented by Mr. Kirchner raise at least two concerns under these provisions.  First, because he is currently involved in evaluating the very types of forms which he proposes to help people fill out, his independence of judgment is certainly jeopardized.  Even if he scupulously avoids reviewing information from any of the forms he has helped to prepare, it is still possible that his judgment as to the accuracy of others’ forms may be influenced by what he has previously told paying clients or their attorney.  Such a problem cannot be resolved even if DIM agrees not to give him any more Title Nineteen work, because if one of his co-workers reviews the information provided on a form which Mr. Kirchner has helped to prepare and questions the applicant, or advises Intake to question the applicant, the applicant (or the applicant’s attorney) is naturally going to turn to the person who was paid to prepare it to answer those questions.  This creates an untenable divided allegiance problem for Mr. Kirchner.

Secondly, the fact that Mr. Kirchner is a Lead Investigator at DIM lends his proposed outside consulting business a credibility which does not arise from his expertise alone, but rather results from an inadvertent use of his office.  In other words, clients are more likely to come to him because they believe that they will be treated differently at DIM as a result of his position there.  Therefore, the proposed outside employment is prohibited by both §1-84(b) and §1-84(c).

This prohibition applies only with respect to work with the Connecticut Department of Income Maintenance, and would not extend to work as a consultant in Massachusetts, for example.

By order of the Commission,

Christopher T. Donohue
Chairperson