Advisory Opinion No. 2000-20

Application Of The Code’s Use Of Office Prohibition To Health Center Faculty Performing Outside Consulting Work Which Utilizes State Resources

A policy has been established at the University of Connecticut Health Center (UCHC) which allows faculty to participate in academically related activities. For example, a faculty member may be asked by a National Institute of Health study section to review grant applications. A faculty member may also make scientific/educational presentations at professional meetings, to health providers or the public as continuing education. In many cases, the faculty member has been asked to participate in the above-described activities because of their expertise. In recognition of the fact that the outside activity may also benefit UCHC, the faculty member has been given the option to be treated as a state employee, or alternatively, as a consultant. If the individual chooses to be treated as a consultant, the faculty member may receive a fee or honorarium but will reimburse the State for any resources used such as office, computer, and phone expenses, the value of departmental conference rooms, and the time of an administrative assistant.

These activities are not a requirement of employment. Rather, such projects are taken on voluntarily. However, they do enhance UCHC’s reputation, may increase the probability of obtaining additional funding, and help the faculty member achieve promotion. Dr. Scott Wetstone has asked whether, under The Code Of Ethics For Public Officials, faculty members must continue to reimburse the UCHC for consultant expenses, when, in fact, the work also benefits the Health Center.

Specifically, Dr. Wetstone has asked whether state resources could be used if the activity has value to UCHC, the State, or any other general public purpose, such as when the faculty member serves on a governmental study section, governmental advisory panel, or other non-profit entity. The Code of Ethics for Public Officials, Chapter 10, Part I, Connecticut General Statutes, allows a state employee to use his expertise, but prohibits the employee from using his position or office for personal financial gain. Conn. Gen. Stat. §1-84(c). It has been the Commission’s consistent position that a public official or state employee may not use state goods or services, including computer equipment, in furtherance of his or her outside employment. See, e.g., State Ethics Commission Docket No. 79-12: Legislator sanctioned for use of state property to promote his private business. See, also, Ethics Advisory Opinion No. 98-4, 59 Conn. L.J.  No. 37, p. 6C (3/10/98). In Advisory Opinion No. 98-4, the Commission refused to allow a legislator to use his legislative laptop computer in the course of his instruction as a high school teacher. The Commission rejected the suggestion that an exemption be adopted whenever another public instrumentality is involved. Rather, the Commission ruled that "§1-84(c) is violated whenever a state servant utilizes state goods or services incident to his or her private employment, no matter how salutary the purpose of that employment." Id. Therefore, once the faculty member chooses not to be treated as a state employee and as a result earns additional remuneration, then he or she may not also take advantage of the State’s facilities, equipment, and/or services. If, for example, a computer is needed for the outside activity, the faculty member will need to purchase his or her own personal laptop computer. If the expenses become burdensome, UCHC has already provided a solution by allowing the individual to choose to be treated as a state employee.

Secondly, Dr. Wetstone has asked whether state resources that are idle and non-consumable such as a faculty member’s private office, shared office or conference room may be used for consultant work. A violation of the use of office provision contemplates that the state servant is avoiding out-of-pocket expenses relating to their outside income. In this case, there is no additional expense incurred by the State such as, for example, a specific charge for a long distance telephone call. Therefore, unless the use of such space is so frequent that the employee would otherwise need to rent office space, it will not be an improper use of one’s position to utilize idle space at UCHC. Of course, if UCHC would otherwise charge someone not related to the Health Center for the use of this office space or conference room, then the individual would need to reimburse the standard cost.

Finally, Dr. Wetstone has asked if relatively small expenses incurred by the State, such as occasional use of the phone to set up a meeting or use of an administrative assistant to make travel arrangements, need to be reimbursed. The Commission has defined a financial benefit of one hundred dollars or less per person per year to be an interest of a de minimis, i.e., insignificant, nature. See, Advisory Opinion No. 98-9, 59 Conn. L.J. No. 45, p. 5D (5/5/98); Regulations of Connecticut State Agencies, §1-81-30(a). This one hundred dollar amount was adopted as the threshold for determining a violation of §1-84(c). Specifically, the Commission ruled that benefits with a cumulative value of less than one hundred dollars per person per year provided to a state servant, by virtue of his public position, may be allowed. Therefore, the faculty member is allowed such de minimis use of state resources without violating §1-84(c). It should be noted, however, that the one hundred dollar threshold is an annual limit relating to all outside activity combined, and is not allowed for each separate outside endeavor. Furthermore, regarding use of another state employee’s time, such as one’s administrative assistant, the faculty member may never use the authority of his state position to secure help relating to outside employment. Although the assistant may voluntarily agree to provide help while not on state time, it would be a use of office to pressure an employee when enlisting their aid. Additionally, any such outside work must be compensated at fair market rates. See, Advisory Opinion No. 92-24, 54 Conn. L.J. No. 31, p. 4C (2/2/93): State employee superior may hire state employee subordinate for outside work, but must pay fair market value for services rendered.

By order of the Commission,

Rosemary Giuliano,
Chairperson