Advisory Opinion No. 2002-8

Application Of Code’s Open And Public Process Requirements To Contracts Between
Community Colleges And Their Employees

The State Ethics Commission has been asked to review the application of the Code of Ethics for Public Officials, Conn. Gen. Stat. §1-79 et seq., to contracts between state agencies and state employees in the context of the state’s community college system. Specifically, recent audits of these institutions have revealed that on a number of occasions, a state community college has entered into a separate personal service agreement with one of its own employees without making the contract opportunity available to the public.

Under Conn. Gen. Stat. §1-84(i), "no public official or state employee or member of his immediate family or a business with which he is associated shall enter into a contract with the state, valued at one hundred dollars or more, other than a contract of employment as a state employee or pursuant to a court appointment, unless the contract has been awarded through an open and public process, including prior public offer and subsequent public disclosure of all proposals considered and the contract awarded." The State Ethics Commission has previously held that, for purposes of the application of the Code of Ethics, personal service agreements are not contracts of employment as a state employee, but rather represent independent contracts. See State Ethics Commission Advisory Opinion No. 94-13, 56 Conn. L. J. No. 4, p.1C (7/26/94), "Application of Code of Ethics for Public Officials to Individuals Hired Through Special Payroll Account or Under Personal Services Agreement." Therefore, any personal service agreement valued at $100 or more and entered into between any state agency, including a community college, and any public official or state employee, member of his immediate family or a business with which he is associated, must comply with the open and public process requirements of §1-84(i).

Prior to the proliferation of computer web sites, the public offer of a contract opportunity generally meant that the state agency had to place an advertisement in an appropriate publication, or physically post the opportunity in a location where not only state employees, but members of the general public likely to apply for the work would see it. The fact that a newspaper ad may not be cost effective when the contract is a small one does not give the state agency carte blanche to hire a state employee through word of mouth. On the contrary, the failure to make a public offer simply means that the contract must be awarded to someone who is not a member of one of the prohibited classes. With the new computer technology and accessibility, however, a state agency with a contract opportunity can satisfy the prior public offer requirement of §1-84(i) by posting the opportunity on its public web site and also on the Department of Administrative Services’ Procurement/Purchasing web site. This dual posting will not only provide a public advertisement of the opportunity to potential vendors who check the agency’s site, but will also provide a more generalized public advertisement on the state web site dedicated to contract procurement. Also, of course, the agency must comply with any more stringent bid process rules required either by the agency itself or by the Department of Administrative Services.

The conduct of any state employee or public official attempting to contract with the state is also governed by Conn. Gen. Stat. §1-84(c), which prohibits such an individual from using his public office or position, or any confidential information received through holding such office or position, to obtain financial gain for himself, his spouse, child, child’s spouse, parent, brother or sister or a business with which he is associated. Therefore, for example, in the specific instances revealed by these audits of state community colleges, if the college employee in his state role would normally participate in the selection process, then he must notify his superior of his application for the contract. The superior will then assign the matter to a colleague at or above the employee’s level. The employee must have nothing to do with the evaluation of responses or the award of the contract, nor should he supervise those who will be involved in the contract award. See State Ethics Commission Advisory Opinion No. 90-12, 51 Conn. L. J. No.48, p. 3D (5/29/90), "UConn Faculty Member’s Company Competing for State Higher Education Grants." Finally, under Conn. Gen. Stat. §1-84(c), in order to apply for the contract, the state employee must have had nothing to do with the preparation of the contract request for proposal.

By order of the Commission,

Rosemary Giuliano
Chairperson