Advisory Opinion No. 1996-20

Former Commissioner Of Commission On Hospitals And Health Care
Barred By Conn. Gen. Stat. §1-84b(a) From Accepting Employment
Regarding A Particular Matter

Attorney Thomas Morgan has asked the State State Ethics Commission whether §1-84b(a) of the Code of Ethics for Public Officials, Conn. Gen. Stat. §1-79 et seq., precludes his client, John Farrell, from accepting employment in connection with a Certificate of Need ("CON") application pending before the Office of Health Care Access ("OHCA"), the successor agency to the Commission on Hospitals and Health Care ("CHHC"), on which Mr. Farrell served as a commissioner.

Through his attorney, Mr. Farrell states that approximately five years ago a health care provider submitted a CON application to the CHHC seeking to develop an outpatient radiation therapy program. In his role as CHHC commissioner, Mr. Farrell heard the application. Prior to issuing his decision, Mr. Farrell met with the health care provider and, among other things, suggested that the provider work collaboratively with other providers rather than seek the CON on its own. The health care provider then withdrew its application; Mr. Farrell never issued a decision. Now, that provider with other providers has again submitted a CON application to provide the same outpatient radiation therapy program. The CHHC has been succeeded by the OHCA, but according to Mr. Farrell’s attorney, the CON regulations governing this area remain the same.

Section 1-84b(a) states in part that no former executive branch public official or state employee shall represent anyone other than the state, concerning any particular matter in which he participated personally and substantially while in state service and in which the state has a substantial interest. There is no time limit on the application of this Code section. "Substantial participation in a particular matter" is defined by regulation as participation that was "direct, extensive and substantive, not peripheral, clerical or ministerial" See, Regulations of Connecticut State Agencies §1-81-32. An example of participation which was not substantial would be a secretary or clerk who typed an important document but was not otherwise involved in its creation.

In contrast, Mr. Farrell, in his official capacity as a CHHC commissioner, gave specific advice to one of the health providers now seeking a CON from the state. In making this second application, the health provider apparently heeded that advice. Because the two applications concern one "particular matter" (the CON to provide outpatient radiation therapy) and because Mr. Farrell was directly involved, not just in the prior application process, but in suggesting the very approach which the health provider is now pursuing, Mr. Farrell should not accept the contemplated employment.

By order of the Commission,

Stanley Burdick
Vice-Chairperson