Advisory Opinion No. 2002-12

Application Of Various Conflict Of Interest Provisions Of Code Of Ethics To Connecticut State University Board Of Trustee Member

Gail Williams, a member of the Connecticut State University Board of Trustees, and William Cibes, Chancellor of the Connecticut State University System, have asked a number of questions regarding the application of the Code of Ethics for Public Officials, Conn. Gen. Stat. §1-79 et seq., to potential contracts between a university within the system and Ms. Williams, her husband Greg Williams, and/or a business with which she is associated.

Ms. Williams and her husband provide computer-training services through a corporation that they established. Ms. Williams is also interested in teaching sales training courses. She has indicated that, because she believed that their services would enhance the academic environment at the universities she oversees as a Board member, she made presentations to WestConn, Central, Southern and Eastern regarding adding Information Technology, Finance and Sales Training to each curriculum. This created the possibility that she, her husband and/or their corporation might enter into an agreement with one or more of the universities to supply this training. Additionally, Ms. Williams and officials at WestConn have discussed the possibility that she might teach a non-credit/certificate sales training course, and sell her curriculum in the WestConn bookstore.

Ms. Williams has asked how the Code of Ethics applies to these facts. Chancellor Cibes has also sought the Commission’s guidance, specifically asking, among others, the following questions:

--What is the impact of Ms. Williams’ participation in the discussion of curricular changes with the universities?

--Does it matter whether the universities have publicly advertised the opportunity to provide the type of training which is contemplated by Ms. Williams, her husband, and/or their business?

--Does it matter whether the universities have previously executed contracts with other trainers to teach these courses?

--If a university does publicly advertise this contract opportunity, based on Ms. Williams’ curriculum change, is there still a conflict of interest? When must the public advertisement take place?

--Is there a distinction between offering a non-credit course as a contractor, and offering a for-credit course as an adjunct faculty member?

--Is there a distinction between Ms. Williams’ teaching the course, and her husband teaching the course?

As with any other public official, a Board of Trustee member may not use his or her public position for personal financial gain, or the financial gain of his or her spouse or a business with which he or she is associated. See Conn. Gen. Stat. §1-84(c). A business with which a public official is associated includes a business owned by the official’s spouse. See Conn. Gen. Stat. §1-79(b). Generally, neither a public official, a member of a public official’s immediate family nor a business with which the public official is associated may enter into a contract with the state valued at $100 or more, other than a contract as a state employee, unless the contract has been awarded through an open and public process. See Conn. Gen. Stat. §1-84(i). An open and public process means that there has been a public offering of the contract opportunity and public disclosure of the bids received and the ultimate contract awarded. This requirement does not apply, however, to an uncompensated public official unless the public official has "authority or control over the subject matter of the contract." Id. Therefore, the open and public process requirement of §1-84(i) will not apply to Ms. Williams unless the Board of Trustees has authority or control over the subject matter of her contract.

Among its many duties, the Board of Trustees has the authority to "employ faculty and other personnel needed to maintain and operate the institutions within its jurisdiction," to "review and approve institutional budget requests," as well as the authority to submit to the Board of Governors for Higher Education for approval "recommendations for the establishment of new academic programs." See Conn. Gen. Stat. §10a-89.

The threshold issue under the Code of Ethics raised by Ms. Williams’ question, however, is not whether any such contract must be awarded through an open and public process, but rather whether the contract is the product of Ms. Williams’ use of official position, however inadvertent that use may be. A contract arranged as the result of a use of office would be prohibited even if the contract opportunity had been publicly advertised. On the other hand, if a university’s curriculum already included the type of course contemplated by Ms. Williams, the Code of Ethics would not prohibit her, her husband, or their business from contracting with the university to offer their services, provided that the open and public requirements of §1-84(i) are followed if the Board of Trustees has authority or control over the contract’s subject matter.

Ms. Williams has indicated that she approached the universities under her authority and suggested that they add certain courses to the curriculum. To now benefit from these actions would raise a conflict of interest issue under §1-84(c). The same conflict of interest exists whether the contract is made with Ms. Williams, her husband and/or with their business. The question then arises as to the length of time after the courses are added to the curriculum that these parties must wait before contracting with one of the universities. In order to avoid the taint of §1-84(c), the contract opportunity should be publicly offered by a university for at least one budget cycle before the Williams’ or their business can offer their services to the school. Of course, it is possible that the university might not receive a viable bid during that cycle. This fact alone would not prevent a subsequent contract with the Williams’, but under no circumstances could a university simply wait until the time period has expired to then award a contract to them.

Also, because the Board has authority "to employ faculty," if the contract as an adjunct faculty member is a personal services contract rather than a contract as a state employee, then any contract awarded to Mr. and Mrs. Williams must be awarded through an open and public process under Conn. Gen. Stat. §1-84(i).

With regard to the teaching of non-credit courses, Elaine Miller, Director of the Adult Education program at WestConn, has indicated that the university publishes a general advertisement once or twice a year soliciting members of the public to submit possible ideas for courses that they might like to teach. Ms. Miller states that Ms. Williams approached her with two ideas, one for sales training to be taught by herself and one for computer training to be taught by Mr. Williams. If Ms. Williams simply followed the normal process that would be followed by any other member of the public, then she and/or her husband may enter into a contract with WestConn. The specific contract opportunity does not need to be publicly noticed. See Conn. Gen. Stat. §1-84(i) and State Ethics Commission Advisory Opinion No. 99-7, 60 Conn. L. J. No. 41, p.13C (4/13/99): Business owned by member of University of Connecticut Board of Trustees could enter into contract with university if there has been no use of public position, Board has no authority or control over the subject matter of the contract, and Board is not charged with awarding or supervising such contract.

Finally, Ms. Williams has indicated that she wishes to sell her course curriculum in the WestConn bookstore. The State Ethics Commission has previously considered the issue of faculty requiring students to buy their materials. In Advisory Opinion No. 2001-7, the Commission held that a faculty member could use his or her own text, provided that a review committee of the university, composed of individuals not subordinate to the faculty member, had approved the use of the materials. The standard to be applied by the review committee in granting such approval is whether the individual in question is "the author of a book recognized as the standard in the field" or which offers "a unique perspective on the topic of study." See Advisory Opinion No. 2001-7, 62 Conn. Law. J. No. 47 (5/22/01). Therefore, Ms. Williams may sell her materials to students provided that the review process outlined in the Commission’s opinion has been followed.

Notwithstanding the foregoing application of the Ethics Code, the Connecticut State University Board of Trustees has expressed concern that the actions proposed by Ms. Williams are contrary to the standards set by the Board’s bylaws. According to Chancellor Cibes, those bylaws state that Board members are "to serve for the public

good and not for personal interest or gain." The Board’s interpretation of this provision is that there is a "flat prohibition" on any relationship between a Board member and any of the universities within the Board’s purview, in order to avoid even an appearance of impropriety. Such a Board policy, applied generally to all Board members, can certainly be considered as part of the Board’s "Ethics Statement," under Conn. Gen. Stat. §1-83(a)(2) of the Code of Ethics. That section of the Ethics Code makes it clear that a state agency, department, board or commission may adopt enforceable ethics rules beyond those required by law, in keeping with the state entity’s mission.

By order of the Commission,

Rosemary Giuliano
Chairperson