Advisory Opinion No. 2002-18

Application Of Post-State Employment Provisions Of 1-84b(b) To The Former Employee’s Application To His Former Agency For Licensure

Pursuant to Conn. Gen. Stat. §1-84b(b), "[n]o former executive branch or quasi-public agency public official or state employee shall, for one year after leaving state service, represent anyone, other than the state, for compensation before the department, agency, board, commission, council or office in which he served at the time of his termination of service, concerning any matter in which the state has a substantial interest."

The State Ethics Commission has been asked how §1-84b(b) applies to officials and employees of departments such as the Department of Consumer Protection (DCP) which regulates virtually all licensed occupations and professions in the State of Connecticut. In particular, representatives of the DCP have asked how Conn. Gen. Stat. §1-84b(b) applies to situations where the former employee must seek a license or other regulatory authority after leaving state service in order to pursue an occupation, profession or other employment. For example, if a pharmacist employed by the DCP leaves state service to open his or her own pharmacy, may that pharmacist then apply in his own name for the license to operate a pharmacy? Alternatively, if an employee of the DCP leaves, may he within one year apply to the DCP in his own name for a Real Estate Broker’s license?

The State Ethics Commission has previously held in the context of §1-84b(b) that to "represent" means to do any activity that reveals the identity of the former state employee, e.g., appearing in person, signing a document, or identifying oneself on the telephone. See Advisory Opinion Nos. 98-21, 60 Conn. L.J. No. 10, p. 3C (September 8, 1998) and 89-25 (Amended), 51 Conn. L.J. No. 24, p. 2E (December 12, 1989).

The Commission has also held that in seeking consulting work with one’s former agency, a former state employee would be representing someone other than the state, i.e., himself, in violation of the express terms of §1-84b(b). Advisory Opinion No. 89-25 (Amended), 51 Conn. L.J. No. 24, p. 2E (December 12, 1989); see also Advisory Opinion No. 98-21, 60 Conn. L.J. No. 10, p. 3C (September 8, 1998). Nevertheless, the Commission recognized the legitimate need, in many circumstances, for an agency to engage former employees as consultants to fulfill essential functions. Consequently, the Commission carved out an exception for representation of oneself before one’s former agency for such consulting positions, provided that the former employee’s new compensation rate doesn’t exceed his pay rate at the time of separation from state service plus fringe benefits and necessary expenses.

Given the limited nature of this self-representation exception, the issue raised by this inquiry turns on whether a public official or state employee who leaves state service and returns to his former agency to apply for a license or permit necessary for him to pursue new employment is appearing for compensation. Section 1-81-18(c) of the Regs. Conn. State Agencies, while not directly applicable to §1-84b(b), is instructive on this issue. That regulation states:

. . . [I]t shall not be a violation of Subsection (d) of Section 1-84 of the general statutes, for a public official or state employee subject to that provision to appear or take any other action before a listed agency on behalf of himself or herself, his or her family, a constituent, or any other individual provided that no compensation is received by the official or employee, or his or her firm or business, for the representation.

Regs. Conn. State Agencies §1-81-18(c).

The purpose of this regulation, applicable to state employees who might otherwise be prohibited from appearing before any one of thirteen regulatory agencies specified in Conn. Gen. Stat. §1-84(d), is to nevertheless permit said state employees to appear before such agencies when they are not being directly compensated for such appearance. The rationale of said regulation -- permitting such appearances when there is no financial incentive on the state employee’s part to abuse his state agency connections -- applies equally to the issue under consideration here. To the extent that one must appear before his former agency to apply for a permit or license for himself that is necessary for him to pursue future employment, it is not representation for compensation before one’s former agency. Nevertheless, as the State Ethics Commission has held in the context of administrative lobbying, it would violate §1-84b(b) if the former employee went outside the usual licensing or permitting process to contact former agency colleagues to ensure that he or she received the requested license or permit. Such a conclusion is compelled by the rationale which underlies § 1-84b(b): the establishment of a "cooling off" period to inhibit use of influence and contacts with one’s former agency colleagues for improper financial gain.

By order of the Commission,

Rosemary Giuliano
Chairperson