Advisory Opinion No. 1994-16

Application Of Code Of Ethics To Member Of
Connecticut Medical Examining Board

Attorney Elliott Pollack, a member of the Connecticut Medical Examining Board (“CMEB”), has asked whether the Code of Ethics for Public Officials, Conn. Gen. Stat. §1-79 et seq., prohibits him from representing physicians during the course of investigations conducted by the Public Health Hearing Office of the Department of Public Health and Addiction Services (“DPHAS”) (formerly the Department of Health Services).  Attorney Pollack indicates that, should the matter proceed to a hearing before the CMEB, he would refrain from appearing before that body.

Conn. Gen. Stat. §20-8a(a) states that “[t]here shall be within the department of health services a Connecticut medical examining board.”  The CMEB’s authority includes hearing and deciding matters concerning the suspension or revocation of the license to practice medicine, adjudicating complaints against practitioners and imposing sanctions when appropriate.  See Conn. Gen. Stat. §20-8a(e).  As a preliminary matter, although a CMEB member is not compensated for service to the board, he or she is a “public official” as that term is defined in the Code of Ethics, since the CMEB exercises the power of the state.  See Conn. Gen. Stat. §§1-79(h) and 1-79(k).

The language of Conn. Gen. Stat. §20-8a quoted above makes it clear that the CMEB is established “within” DPHAS and is a part of that department, not an independent entity.  DPHAS employees provide such staff to the CMEB as the department deems necessary, investigate all complaints whether or not they are ultimately brought before the CMEB, and prosecute all matters which do reach the stage of a CMEB hearing.  See, for example, Conn. Gen. Stat. §§19a-14(a)(2), (8), (10), and (11).

DPHAS also controls “the allocation, disbursement and budgeting of funds appropriated to the department” for the operation of CMEB.  Conn. Gen. Stat. §19a-14(a)(1).  By contrast, for example, the statute setting up the Commission on Hospitals and Health Care states that “[t]here is established an independent commission on hospitals and health care. . .”: such staff as that Commission has is provided by DPHAS “as the commission may deem necessary.”  See Conn. Gen. Stat. §§19a-146, 19a-148(a), and State Ethics Commission Advisory Opinion No. 91-21, 53 Conn. L.J. No. 11, p. 3C (9/10/91) (“Commission on Hospitals and Health Care Deemed Separate Agency From the Department of Health Services For Purposes of the Post-state Employment Rules.”)

Thus, both while a member of the CMEB and for a year after leaving the CMEB, Attorney Pollack may not represent anyone with regard to an investigation which might ultimately be resolved by that board.  Similarly, he must not work on any matter involving DPHAS personnel with whom he may work in his official public capacity.  As a current CMEB member, the acceptance of such employment in his private capacity would violation Conn. Gen. Stat. §1-84(b), which prohibits the acceptance of outside employment by a public official if such employment would impair his independence of judgment with regard to his official duties.  Here, Attorney Pollack’s effectiveness, if not his impartiality, as a CMEB member would most certainly be jeopardized by his acceptance of private casework subject to CMEB’s jurisdiction.  See State Ethics Commission Advisory Opinion No. 93-10, 54 Conn. L.J. No. 45, p. 7E (5/11/93).

Such outside employment would also be an inappropriate use of office in violation of Conn. Gen. Stat. §1-84(c).  The attorneys at DPHAS would be placed in the untenable position of negotiating cases with Attorney Pollack in his private role, and then appearing before him as prosecutors on other matters, albeit unrelated, for which he sits in a decision-making capacity.  And, as the Commission has stated in past opinions, Attorney Pollack’s position as a CMEB member lends his private practice in this area a credibility among potential clients which does not arise from his expertise alone, but rather results from this use of office, however inadvertent.  See Ethics Commission Advisory Opinion No. 93-10, supra.

With regard to Attorney Pollack’s activities after leaving the CMEB, the revolving door provisions of the Code of Ethics prohibit his representation of anyone for compensation before DPHAS for a year after he leaves state service.  See Conn. Gen. Stat. §1-84b(b), State Ethics Commission Advisory Opinion No. 93-15, 55 Conn. L.J. No. 6, p. 5C (8/10/93).  This would of course include his representation of physician clients with regard to investigations by the Public Health Hearing Office of DPHAS, or complaints heard by the CMEB.  “Representation” includes attending meetings with DPHAS staff or officials, making telephone calls, signing correspondence or other documents submitted to DHS, or including his name on any letterhead so submitted.  See State Ethics Commission Advisory Opinion No. 91-24, 53 Conn. L.J. No. 16, p. 1C (10/15/91).

The one-year revolving door restriction of §1-84b(b) does not extend to other members of Attorney Pollack’s firm, even if he is a partner and therefore the firm is a “business with which he is associated” as that term is defined in the Code of Ethics.  Conn. Gen. Stat. §1-79(b).  Provided that Attorney Pollack does not participate in the division of profits from any such work, other firm attorneys are not prohibited from appearing before DPHAS in the year after he leaves the CMEB.  See State Ethics Commission Advisory Opinion No. 89-13, 50 Conn. L.J. No. 46, p. 1C (5/16/89).

However, if Attorney Pollack’s firm is a business with which he is associated (e.g., he is a partner or shareholder of five percent or more of the outstanding stock of any class), then while Attorney Pollack is a member of the CMEB, the firm should refrain from any representation before the CMEB or any representation at the DPHAS involving a DPHAS employee who might work with Attorney Pollack in his official capacity.  The Code prohibits use of office not only for one’s individual financial gain but also for the financial gain of a business with which one is associated.  Conn. Gen. Stat. §1-84(c).  Therefore, the reasoning which applies to Attorney Pollack applies with equal force to his law firm.  In contrast, the revolving door laws are personal to the individual and do not extend to his business.

Finally, both Attorney Pollack and his firm may currently provide representation before other DPHAS employees or on other DPHAS matters, provided that these individuals and matters are clearly unrelated to the CMEB.  Of course, as discussed above, such representation by Attorney Pollack will be prohibited for a year after he leaves the CMEB.

By order of the Commission,

R.E. VanNorstrand
Chairperson