Advisory Opinion No. 1994-15

Application Of Outside Employment Rules To State Environmental
Analyst’s Private Work In Wetland Delineation

 Earl Beebe, who is employed by the Department of Environmental Protection (“DEP”), Waste Bureau, Division of Planning and Standards, as an environmental analyst, has asked how the Code of Ethics for Public Officials, Conn. Gen. Stat. §1-79 et seq., applies to his proposed private work as a consultant performing wetland delineations and site assessments.

In his state job, Mr. Beebe currently assists in the composting program and works on planning issues related to recycling and bulky waste disposal.  According to the Director of the Planning and Standards Division of the Bureau of Waste Management, John Cimochowski, Mr. Beebe’s state work does not involve any of the work he proposes to perform in his private capacity.  The DEP does oversee municipal decisions regarding wetlands through its Wetlands Division, an arm of the Water Resources Bureau.  Under a provision of the state Wetlands Act, if a municipality does not act on a wetlands issue within a set time period, the municipal petitioner can ask the state DEP to step in and decide the case.  According to the Wetlands Division, that procedure has been used only once or twice since the law went into effect in 1987.  Mr. Beebe would be performing the underlying technical soil testing and demarcation for the private individual or corporation seeking municipal approval of a particular project, but would not otherwise represent the municipal petitioner.  Thus, as a practical matter, it does not appear that Mr. Beebe’s private work will be subject to direct DEP review.  In fact, Mr. Beebe states that he also performed private delineations from 1988 to 1993, when he joined DEP, and never faced an issue with DEP during that time.

Although Mr. Beebe has indicated that he would take no work which involves a DEP permit, the possibility of intervention as described above and other possible scenarios involving DEP action do raise the question of whether Mr. Beebe will be able to predict which decisions regarding a particular job may ultimately involve the DEP.  Mr. Beebe states that he can predict with reasonable certainty whether the DEP will become involved in a particular matter, based on the size and scope of his work and the proposed overall activity.  He further states that he will refrain from taking any outside work marked by these features.  A review of the DEP’s workload supports Mr. Beebe’s statement.  According to DEP records and wetlands personnel, there are approximately two thousand municipal wetlands permits issued in a year.  Of these, the DEP becomes substantially involved in approximately one hundred cases.  Less than one-half of those cases involve the kind of “Mom and Pop” activity which would comprise Mr. Beebe’s outside work.  This minimal possibility of DEP involvement is not sufficient to prevent the proposed outside employment under the Ethics Code.

Another potential problem is that Mr. Beebe’s state work in the recycling program may involve an assignment anywhere in the state.  This could create a difficulty if, in his state job, Mr. Beebe were dealing with the same municipal officials as in his private work.  Mr. Beebe asserts, however, that in his state position he interacts with town public works officials, while his private work would be presented to the municipal wetlands board.

In general, the Code of Ethics does not prohibit outside employment, provided that state duties always take priority and that certain provisions of the Code are followed.  For example, a state employee may not accept outside employment which may impair his independence of judgment as to his state duties, or require 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 state position, however inadvertently, to further his private financial interests.  Conn. Gen. Stat. §1-84(c).

Finally, no state employee, including a DEP employee, may accept a fee for appearing or taking any other action on behalf of another before the DEP.  Conn. Gen. Stat. §1-84(d).  Therefore, if Mr. Beebe signs or stamps the private work he performs, in the rare instance that the matter ultimately comes before DEP, either the private party will have to have a second delineation performed for presentation to DEP, or Mr. Beebe must not accept, or must return, the compensation for his work.

Applying these rules and restrictions to the facts presented here, Mr. Beebe may accept the outside employment he contemplates.  It does not appear that this private work will impair his independence of judgment with regard to his state duties.  Of course, Mr. Beebe may not use the fact that he works at DEP to attract clients to his outside consulting business.

If a potential conflict of interest does arise, Mr. Beebe must immediately notify his supervisor of the conflict in writing.  The supervisor will then assign the matter in question to an individual of equal or higher seniority to Mr. Beebe.  See Conn. Gen. Stat. §1-86(a).

By order of the Commission,

R.E. VanNorstrand
Chairperson