Advisory Opinion No. 2001-4

Application Of The Code Of Ethics For Public Officials To The
Former Commissioner Of The Department Of Public Safety

On January 30, 2001, the Auditors of Public Accounts (Auditors) issued a Performance Audit (Report) which, in pertinent part, reviews and raises questions regarding the reemployment of the former Commissioner of Public Safety, Dr. Henry Lee.

Specifically, the Report notes that Dr. Lee was reemployed, pursuant to Conn. Gen. Stat. §5-164a (c) as modified, which allows for a state retiree to be reemployed for up to 120 days per year without losing his or her retirement benefits. Pursuant to this provision, after his retirement on July 31, 1998, Dr. Lee was immediately rehired as Commissioner for the remainder of the calendar year. This arrangement was continued in calendar year 1999 and also in calendar year 2000, with Dr. Lee relinquishing the position on May 31, 2000. Under the reemployment agreement Dr. Lee was paid substantially more per hour than his final salary as full time Commissioner, with, for a period of time in 1999, an effective hourly rate of approximately four times his prior state salary ($220.00 vs. $50.95). In essence, the purpose of this pay rate was to allow Dr. Lee to earn, during the allowable 120 days, the maximum salary of a Commissioner working full time.

In response to this set of facts, the Auditors recommend that: "statutory authority or regulation should be established over the practice of reemploying retirees, for the same or similar position that the retired employee was in, at a higher hourly rate". Report at p. 32. At the same time, the Auditors explicitly note that "we are not assessing the decision to reemploy the retired Commissioner of Public Safety at a particular pay rate as not being beneficial to the State." Id.

Given the public attention accorded to this section of the Auditors’ Report, the State Ethics Commission believes it is important to state for the record the application of the provisions of The Code Of Ethics For Public Officials, Conn. Gen. Stat. Chapter 10, Part I, to this matter.

Specifically, for over a decade, the Commission has consistently ruled that a former state servant could not contract as a consultant with his or her former agency, for one year after leaving state service, unless the former employee’s compensation was limited to their prior salary (i.e., salary grade at time of separation from state service plus fringe benefits). See, e.g., State Ethics Commission Advisory Opinion No. 89-25 (Amended), 51 Conn. L.J. No. 24, p. 2E (December 12, 1989). In essence, the Commission reasoned that such a limitation would prevent the former employee from utilizing contacts and influence at the former agency for improper financial gain in violation of §1-84b(b) of the Code’s post-state employment restrictions. Id.

The current situation is, however, distinguishable. Specifically, the Commission has held that, as 120 day workers, the "retirees" occupy classified positions and, therefore, are still considered state employees, not independent contractors, for purposes of the Code. See, State Ethics Commission Advisory Opinion No. 98-21, 60 Conn. L.J. No. 10, p. 3C (September 8, 1998) and Conn. Gen. Stat. §1-79(m).

As a consequence, the applicable Code provision in this instance is Conn. Gen. Stat. §1-84(c), which prohibits a current public official or state employee from using his or her position for financial gain. Applying this statutory proscription to the facts under review, it is readily apparent that Dr. Lee did not seek to use his position for improper financial gain.

Specifically, a misuse of office would have occurred, if Dr. Lee sought to negotiate the financial arrangements in question with his subordinates at the Department of Public Safety or if he had created or extended agency projects in order to justify his rehiring. However, there is no indication that either of these courses of conduct took place. To the contrary, as the Office of Policy and Management’s (OPM) response to the Auditor’s Report makes clear, it was OPM that approved the pay rates in question as a financial incentive to retain Dr. Lee in order to complete ongoing, essential Department of Public Safety projects. Report at p. 32. (Furthermore, OPM’s response also makes clear that while Dr. Lee was paid a salary equivalent to full time pay for 120 days of reemployment, he, in fact, continued to work year-round; donating the rest of his time to the State. Id.). Finally, the projects which necessitated his retention were not created nor extended by Dr. Lee, but were longstanding agency commitments (e.g., implementation of the State Police radio system).

Under these circumstances, no action taken by Dr. Lee violates the requirements of the State’s Code Of Ethics For Public Officials. In issuing this Opinion, the Ethics Commission wishes to emphasize that it in no way seeks to minimize the legitimate policy concerns raised by the Auditors, nor does the Commission purport to rule on the potential application of any statutory or regulatory provisions outside of the Code of Ethics to this matter.

By order of the Commission,

Rosemary Giuliano
Chairperson