Advisory Opinion No. 96-21
Application of Conn. Gen. Stat. § 1-84(1)
Based on concerns expressed by various individuals, State Ethics Commission attorney Rachel S. Rubin has asked the Commission for an interpretation of Conn. Gen. Stat. § 1-84(1). Subsection 1-84(1) states, "No public official or state employee, or any person acting on behalf of a public official or state employee, shall willfully and knowingly interfere with, influence, direct or solicit existing or new lobbying contracts, agreements or business relationships for or on behalf of any person."
Attorney Rubin has articulated the specific concerns regarding this provision in a series of questions which follow. In each instance, she wishes to know whether the hypothetical conduct set forth would constitute a violation of § 1-84(1):
1. Question: A public official calls a lobbyist’s supervisor to demand that the lobbyist be fired.
2. Question: A public official calls a lobbyist’s supervisor to tell him that the lobbyist is no longer welcome in his office.
A. The public official then goes on to say that the lobbyist’s supervisor must send someone else if he wants to communicate his positions on pending legislation.
B. The public official then says that the lobbyist is no longer welcome in his office because of a politically offensive remark made about another person.
C. The same facts as 2.B. except that the other person is a public official, and has requested that the lobbyist be punished on his behalf. Has either public official violated the statute?A. The public official then says that the offense will be forgiven, the bill saved and his job as a lobbyist secure if he publicly praises the public official in writing.
B. The same facts as question 3. A., but all of the actions of the public official are for or on behalf of another person who has been offended by the actions of the lobbyist.
C. The same facts as 3.B., except that the other person is also a public official, and has requested that the lobbyist be punished on his behalf. Has either public official violated the statute?
D. The same facts as 3. C., except that the lobbyist refuses to acquiesce. The public officials attempt to impose their punishment, but they are stopped by another public official.
A. The same facts as question 4, but all of the actions of the public official are for or on behalf of another person who has been offended by the actions of the lobbyist.
B. The same facts as 4.A., but the other person is also a public official, and has requested that the lobbyist be punished on his behalf. Has either public official violated the statute?
C. The same facts as 4.B., but the public official goes on to suggest a lobbyist "who can get the job done."
The foregoing questions can best be addressed by means of an analysis of the language and a review of the legislative history of the provision at issue.
When this Commission initially assessed the text of § 1-84(1), it was expressly concerned with what it perceived to be certain overly broad language (i.e., the term "influence") which appeared unworkable and would, if applied literally, create a presumptive unconstitutional burden on freedom of speech. Specifically, this unmodified prohibition on influencing lobbying contracts would bar a public official from providing even a strictly factual assessment in response to a query regarding a lobbyist.
Given these concerns, the State Ethics Commission, when first called upon to apply § 1-84(l), undertook a comprehensive review of the provision’s legislative history. See, e.g., Sasson v. Lepore 226 Conn. 773, 785 (1993). ("If literal construction of a statute raises serious constitutional questions, we are obligated to search for a construction that will accomplish the legislative purpose without risking the statute’s invalidity.") This analysis revealed a specific and far narrower purpose than is indicated by the statutory language at issue. Specifically, during the debate on the floor of the House of Representatives, the following explanation of the provision in question was offered by the House Chairman of the Government Administration and Elections Committee, Representative William Kiner: "The bill also—the amendment prohibits public officials from actively engaging in steering lobbyist contracts to certain lobbyists". 34 H.R. Proc., Part 27, 1991 Sess. p. 10206.
Additionally, the debate contains the following exchange between Representative Irving Stolberg and Representative Kiner:
Representative Stolberg: If a legislator in Connecticut receives a call from an out-of-state corporation in Atlanta and says, "We’re going to need to hire a lobbyist, what do you know about the ethics or the structure of A,B, and C? Can the legislator respond to that or would he or she be prohibited from responding under this bill, through you, Mr. Speaker?
Representative Kiner: Representative Stolberg, I’m glad you entered that question. I think it’s something that needed to be answered for legislative intent. What we’re talking about here is the intentional steering of a contract to a particular lobbyist.
The—what you’re saying basically is this company is asking a legislator merely for information. Is the lobbyist, in your estimation, a good lobbyist? Is that lobbyist ethical? I would have no problem, through you, Mr. Speaker, in answering the truth for that particular question and indicate whether or not I thought the lobbyist was good or not. I don’t consider that—I don’t really consider that in violation of this particular section.
Rep. Stolberg: Thank you very much.
34 H.R. Proc., part 27, 1991 Sess. p. 10241.
The foregoing quotations represent the entire, substantive legislative debate regarding § 1-84(l); and, in fact, the entire legislative history, since the provision was offered as a floor amendment with no prior committee consideration. Consequently, it is unarguable that the only articulated purpose for the legislation was to prohibit "the intentional steering of a contract to a particular lobbyist". Furthermore, conduct which would be barred by a literal reading of the statutory provision (thereby raising serious concerns regarding the constitutionality of the law) is specifically exempted as not being within the intentions of the General Assembly.
Based on this legislative history, the State Ethics Commission, in April of 1993, concluded that, absent the intent to benefit another lobbyist by one’s actions, a public official who interfered with a lobbying contract would not be in violation of § 1-84(l). Given the State Ethics Commission’s prior interpretation of the statute, it is readily apparent that only the conduct set forth in question 4. C. could constitute an Ethics Code violation; for only this scenario contains the requisite intent to benefit another lobbyist.
In closing, the State Ethics Commission wishes to emphasize that its Ruling should not be interpreted as in any way condoning the hypothetical conduct set forth in Attorney Rubin’s questions. The Commission, in its opinions and enforcement actions, does not take public positions regarding the general morality of one’s conduct. Rather, as mandated by statute, the Commission interprets and enforces the State’s Codes of Ethics, as enacted by the General Assembly. If a provision of these Codes in deemed inadequate to protect the public interest, the appropriate remedy is with the Legislature, not the State Ethics Commission.
By order of the Commission,
Maurice FitzMaurice
Chairperson