Advisory Opinion No. 1995-3

Business With Which A DCF Employee Is Associated Entering
Into Contracts With Her Agency

Ms. Ann Tuller is an investigations worker for the Department of Children and Families (DCF).  Her duties include investigating referrals regarding children who have been allegedly abused or neglected and determining what services are appropriate after assessing the risk to them.  As a result of this assessment, certain of the children may be committed to the custody of DCF.  Although the order for supervised visitation is not made by DCF, DCF treatment workers are generally responsible for arranging for supervised visitation between these children and their non-custodial parents.

Ms. Tuller is also President of AMPS, Inc., an organization which offers third-party supervised visitation and parenting skills training.  Such training and visits are designed to meet the need for continuing contact between a child and any non-custodial significant others in that child’s life.  There are at least two other organizations in the region which offer visitation supervision between children and their non-custodial parents.  Some DCF offices would like to use AMPS, Inc. on a contract service basis to provide supervised visitation but have concerns about whether such work would create a conflict of interests.  Consequently, Assistant Attorney General Michael McKenna has asked if there is any conflict of interests, under the Code of Ethics, between Ms. Tuller’s state responsibilities and her involvement with AMPS, Inc.

As an officer of AMPS, Inc., it is a business with which Ms. Tuller is associated for purposes of the Code of Ethics for Public Officials, Chapter 10, Part I, Connecticut General Statutes.  Conn. Gen. Stat. §1-79(b).  In general, a state employee may not accept outside employment which will impair independence of judgment as to state duties or require or induce disclosure of confidential information acquired in state service.  Conn. Gen. Stat. §1-84(b).  A state employee may not use her official position or confidential state information for personal financial benefit for herself or a business with which she is associated.  Conn. Gen. Stat. §1-84(c).  Additionally, a state employee who, in the discharge of her official duties, would be required to take an official action that would affect a financial interest of hers, other than an interest of an inconsequential nature, is required to provide formal notification to her immediate superior, who will assign the matter to another.  Conn. Gen. Stat. §1-86.  With an exception not pertinent, a state employee may not have any financial interest in, or engage in, any business or professional activity if she has reason to believe or expect that she will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity.  Conn. Gen. Stat. §§1-84(a), 1-85.

Consequently, Ms. Tuller may not be paid privately to do what is otherwise expected of her in her state position.  Attorney McKenna has indicated that by and large her duties with DCF do not overlap with those of her outside business.  Ms. Tuller has stated that as an investigations worker, she does not supervise or arrange supervised visits nor does she know of any such investigations workers who have been so assigned.  Attorney McKenna, however, has indicated that on rare occasions she may be required to provide supervised visitation.  Therefore, she may not refuse to do supervised visitations so that it may be referred to her private business.  She should also not be in a position in which either she or a subordinate has to recommend whether or not such visitation or training needs to be provided by an outside group.  Conn. Gen. Stat. §1-86; See e.g., Advisory Opinion No. 90-24, 52 Conn. L.J. No. 9, p. 5C (August 28, 1990) (DMR employees should not perform outside consulting involving client contact or evaluation for a departmental grantee, if their state jobs involve related client consultation); See also, Advisory Opinion No. 86-13, 48 Conn. L.J. No. 26, p. 1C (12/23/86) (state physician who had an ownership interest in a rehabilitation center could not refer a patient to such center unless a valid procedure was in place for a superior to make the decision).

Many of AMPS, Inc.’s clients, however, may be the result of referrals from co-workers at DCF.  Because of the potential for misuse of office, Ms. Tuller should not accept such clients unless her co-workers refrain from making referrals and, alternatively, furnish these individuals with a list of all providers in the area who are available to provide the service.  See In the Matter of a Request for a Declaratory Ruling, Laurence L. Hannafin, et. al. Applicants, June 8, 1984.

Furthermore, if Ms. Tuller, during the course of performing her official responsibilities, has access to confidential information which provides the names of individuals who could benefit from the services of her private business, she may not use such information to contact potential clients.  See In the Matter of a Request for a Declaratory Ruling, Bruce S. Beck Applicant, August 11, 1986; and Docket No. 88-10, Moran v. Pagano (violation of Conn. Gen. Stat. §1-84(c) for referring persons needing services which the state could not provide to a business with which associated); See also, Advisory Opinion No. 89-30, 51 Conn. L.J. No. 25, p. 1E (12/19/89).

Finally, under Conn. Gen. Stat. §1-84(i), any contract, valued at $100 or more, between a state agency and a state employee or a business with which she is associated, may only be awarded through an open and public process, including prior public offer and subsequent public disclosure of all proposals.  The public process is required so that contract selection may be reviewed by both unsuccessful bidders and by the Auditors of Public Accounts.  It is designed to ensure public confidence in the selection process and prevent the use of inside information not generally available to the public or improper use of position for the financial benefit of oneself or one’s business.  Advisory Opinion No. 84-11, 46 Conn. L.J. No. 3, p. 5D (7/17/84).  The public process also notifies other persons interested in and qualified to fulfill the contract to apply and compete; not just the state employee who learns of an opportunity due to her state position.  See, Regulations of Conn. State Agencies §1-81-19(a).

Therefore, any arrangement valued at $100 or more between the state and AMPS, Inc. must be done through an open and public process.  Ms. Tuller, of course, may not be involved in the contract selection process of AMPS, Inc. or its competitors.  To satisfy this requirement, DCF may maintain a list of consultants who have either responded to periodic advertisements or who have otherwise expressed an interest in seeking contract work with the State.  The list (as well as any information submitted to DCF) and the consultant selected must be a matter of public record.  See In the Matter of a Request for a Declaratory Ruling, Attorney Mark Oland Applicant, May 6, 1994.

As long as the above guidelines can be followed without affecting Ms. Tuller’s state responsibilities and duties, Ms. Tuller may be associated with AMPS, Inc.

By order of the Commission,

Rev. William Sangiovanni
Chairperson