Advisory Opinion No. 1993-21

State Regulator Accepting Private
Employment In The Regulated Industry

D. Christopher Vann, an Environmental Resource Technician in the Department of Environmental Protection’s (DEP) Wildlife Division, has asked the State Ethics Commission whether his proposed part-time, private employment as a state licensed Nuisance Wildlife Control Operator (NWCO) is permissible under the Code of Ethics for Public Officials, Connecticut General Statutes, Chapter 10, Part I.

As part of his state duties, Mr. Vann is currently responsible for administering the NWCO program.  According to his request for advice, this work includes:  “…testing applicants, issuing and renewing licenses, drafting correspondence, developing and distributing lists of licensed NWCOs, issuing special permits, tabulating data, receiving complaints of which some are serious and require notification of DEP Law Enforcement for an investigation, and most of all providing technical assistance to the public and NWCOs to assist them in solving many wildlife damage complaints.”

While noting that current DEP policy prohibits all Wildlife Division employees from also working privately as NWCOs, Mr. Vann states his belief that such a policy is not warranted.  In essence, he feels that the high level of competition among Wildlife Control Companies negates any unfair advantage for DEP Wildlife Division personnel.  Additionally, he points out that any concern over prior access to NWCO test questions is absent in his case, since he was certified before becoming NWCO Administrator (and such concerns can be addressed, in general, by improvements in testing procedures).

The State Ethics Commission is not persuaded by Mr. Vann’s arguments.  Under §§1-84(b) and (c) of the Code, no state employee may accept outside employment which will impair independence of judgment as to state duties or require or induce disclosure of confidential state information, nor may such an individual use state position or confidential information acquired through state service to obtain personal financial gain.  Pursuant to these provisions, the Commission has consistently held that conflicts of interest, both real and apparent, are inevitable and unavoidable when a state servant directly responsible for regulating a field of private endeavor seeks to be employed in that same field.  See, e.g., State Ethics Commission Advisory Opinion No. 88-16, 50 Conn. L.J. No. 23, p. 3C (December 6, 1988); see, also, Regulations of Conn. State Agencies §1-81-17.  In almost every activity Mr. Vann performs as NWCO Administrator (i.e., testing applicants, issuing and renewing licenses, developing and distributing lists of NWCOs, issuing special permits, receiving and reviewing complaints, and providing technical assistance to the public and the industry) the clear opportunity exists for impairment of judgment and misuse of office for financial gain.  Furthermore, any attempt to avoid these multiple and fundamental conflicts through abstention would be unworkable, since abstention would be required, not just with regard to state actions directly affecting Mr. Vann as a NWCO, but also in many cases involving a competitor; thereby necessitating, in large measure, the non-performance of his public duties as NWCO Administrator.  Consequently, the State Ethics Commission holds that under the provisions of the Code of Ethics the State’s NWCO Administrator may not be simultaneously employed in the industry he oversees.

By order of the Commission,

Christopher T. Donohue
Chairperson