Advisory Opinion No. 2003-12

Application Of The Code To The Business Interests Of A Candidate
For The Office Of Secretary Of State

Richard F. Orr, Vice President and General Counsel for Barakos-Landino, Inc. (BL), acting on behalf of BL’s President, Robert A. Landino, PE, has asked the State Ethics Commission for an advisory opinion.  Specifically, Attorney Orr wishes to know:  is there any legal restriction which would prevent Mr. Landino from being a candidate for, and serving as, Connecticut’s Secretary of State (SOS); and, if elected, would any changes be required in his business activities?

As background, Attorney Orr has provided a detailed overview of BL’s, and its affiliates’, business activities.  To summarize:

The BL Companies is an architectural and engineering firm, which also offers related services including planning, landscape architecture, land surveying and environmental services;

Mr. Landino is the 100% owner of all of the BL Companies with one exception; he has a partner in a company which provides architectural services and related building engineering;

The majority of BL’s clients are in, and the majority of its revenue is derived from, the private sector.  However, BL also does public sector work, including work for Connecticut municipal governments and agencies and for Connecticut state agencies;

Mr. Landino previously served, from February, 1995 to January, 2001, as a state representative.  Before commencing said service, Mr. Landino sought an opinion from the Commission’s staff and was informed that his business did not need to forfeit any state contracts it had at the time, nor was it forbidden from seeking additional state work.  Nonetheless, during his terms in office, Mr. Landino chose not to seek new state contracts;

Since the completion of his legislative service, BL has sought and obtained contracts to do work for Connecticut state agencies.  Currently, those agencies include the Department of Public Works (DPW), the Department of Transportation (DOT) and the University of Connecticut (UCONN).  Incident to seeking this work, one of the BL companies has registered with the Commission as a client lobbyist.

In addition to working for state agencies, BL works with clients that have matters pending before state agencies.  For example, BL may prepare and submit applications on behalf of such clients to state agencies including:  the Department of Environmental Protection (DEP), DOT, the State Traffic Commission (STC), the Department of Public Health (DPH), and the Liquor Control Commission (LCC);

At the municipal level, BL presently has contracts with, and is doing work for, a number of Connecticut towns and cities.  In certain instances, this work is funded by the State.  BL also frequently appears before municipal boards and commissions on behalf of its clients;

Finally, Mr. Landino has various other business interests.  For purposes of this opinion, Attorney Orr asks that the Commission assume Mr. Landino is the majority or sole owner of these business; i.e., that they are each a “Business with which he is associated” as that term is defined in The Code Of Ethics For Public Officials.  See, Conn. Gen. Stat. §1-79(b).  These miscellaneous businesses include:  a copying and reprographic company, the BL headquarters building; land in proximity to the headquarters, and a land development company.

To comprehensively address Attorney Orr’s two questions, he has asked that the Commission discuss the application of the following Code provisions:  Conn. Gen. Stat. §§1-84(a) (1-85), 1-84(c), 1-84(d), 1-84(i), 1-84(l), 1-96(e) and 1-97(a).  Taking these Code provisions in turn:

Subsection 1-84(a), as limited by §1-85, defines a substantial, and prohibited, conflict for purposes of the Ethics Code.  In essence, a public official has a substantial conflict of interest if he, his immediate family or an associated business will derive a direct monetary gain by reason of his official activity.  A substantial conflict does not exist, however, if the gain accrues to no greater extent than to other members of the affected profession, occupation or group.

Attorney Orr states that neither Mr. Landino nor any of his businesses will seek work from the Office of the SOS.  Given this fact and given that any interaction with the Office would be ministerial in nature (e.g. corporate registration) the possibility of a substantial conflict in this instance appears essentially nil.  The Commission wishes to note, however, that a public official/executive head’s decision not to seek business with his agency is obligatory, not discretionary.  Specifically, under §1-84(i) of the Code, no executive head of an agency or quasi-public agency, or member of his immediate family or an associated business, may enter into any contract with that agency or quasi-public agency.

Subsection 1-84(c) prohibits use of public office or position, or confidential state information, for the financial benefit of the official, specified relatives, or an associated business.  Attorney Orr states that Mr. Landino is aware of and will fully comply with the prohibition on use of confidential information.  He asks, however, whether the §1-84(c) use of office prohibition will bar Mr. Landino’s businesses from working for other state agencies, appearing before other state agencies, or working for or appearing before municipal agencies?

In general, §1-84(c) does not create a per se prohibition on the above enumerated business activities:  provided the official does not exercise regulatory or contractual authority over the work in question; and provided the official, in his business efforts, avoids any use whatsoever of the power and influence of his office.  With regard to state representation and state work, however, further restrictions are required pursuant to Conn. Gen. Stat. §§1-84(d) and (i), discussed infra.

With exceptions not pertinent, §1-84(d) enumerates 13 state agencies, boards and commissions before which a public official and his businesses cannot appear for compensation on behalf of a client.  By its terms, §1-84(d) applies only to “…a partnership, association, professional corporation or sole proprietorship…”  Applying this provision to Mr. Landino and the BL Companies, Attorney Orr states that Mr. Landino will not personally appear before any §1-84(d) entity while serving as SOS.   Attorney Orr further states that “none of the companies which comprise BL Companies is a partnership, association, professional corporation or sole proprietorship.” Given this fact, §1-84(d) will not prohibit the BL Companies from continuing to represent clients before the listed agencies.

In response to Attorney Orr’s additional concerns in this area, no Code section would prohibit BL from representing clients before state agencies not listed in §1-84(d) or before municipal agencies.

Again with exceptions not pertinent, §1-84(i) requires that if a public official or his business wishes to contract with the State, it must be done through an open and public process, including prior public offer of the contract opportunity and subsequent public disclosure of the contract award.  Provided these provisions are followed, §1-84(i) will not prohibit the BL Companies from seeking additional state contracts.  Furthermore, no provision of the Code would require BL to forfeit any of its current state work.  Similarly, no Code section would affect BL’s ability to carry out current, or seek new, municipal work, including work that is state funded.

With regard to §1-84(i), Attorney Orr has also asked whether BL may seek and obtain work that is originally awarded pursuant to the open and public requirements of the Code, but subsequently performed on an “on call” basis.  The answer is yes.  However, Mr. Landino and all those involved on behalf of the State should be scrupulous to insure that the subsequent on call designations are made in a fair and objective manner consistent with clear, previously established, standards.

Pursuant to §1-84(l) no public official may “influence, direct or solicit existing or new lobbying contracts, agreements or business relationships for or on behalf of any person.”  Attorney Orr advises that while no BL Company currently is registered as or retains a lobbyist it may wish to do so in the future.  If so, he inquires whether §1-84(l) would prohibit Mr. Landino, while serving as SOS, from participating in the decision to hire or fire, a “communicator lobbyist.”  In the Commission’s opinion, it would not.  Simply stated, §1-84(l) was never intended to extend to such a scenario.  Rather, the provision was enacted, and will be administered, to prohibit a public official from “steering” other individuals and entities to or away from particular lobbyists.

Finally, §1-97(a) of The Code Of Ethics For Lobbyists prohibits any registered lobbyist from giving a gift to a public official and §1-96(e) of the Lobbyist Code requires lobbyists to report any allowable expenditure for the benefit of a public official.  As a consequence of these provisions, and assuming a BL Company was registered as a lobbyist, Attorney Orr wishes to know whether any payments to Mr. Landino, as profits, salary or expenses, would constitute a prohibited gift or reportable expenditure.  In neither case would the Lobbyist Code apply.  Rather, such transactions are explicitly exempted from the Code’s definition of “Gift” and do not constitute a reportable lobbyist expenditure.  See Conn. Gen. Stat. §1-91(g) (15).  See also, Advisory Opinion No.  83-3, 44 CLJ No. 35, p. 5B (3/1/83) wherein the Commission held:  benefits received did not fall within the definition of “Gift” and were not reportable, if consideration, i.e. work, was provided in return.

Before summarizing its advice, the Commission believes it important to take up one additional issue.  Pursuant to Conn. Gen. Stat. §§ 9-3 and 4, the SOS, by virtue of the Office, is the Commissioner of Elections of the State with certain enumerated duties (e.g., examination and approval of nominating petitions, §9-4 at (12)).  As a consequence, it is possible that, as SOS, Mr. Landino would be required to make a substantive decision regarding an election in, for example, a municipality with which his firm had a contractual relationship.  Admittedly, the likelihood of such an occurrence is both remote and unforeseeable.  Nonetheless, if a potential conflict of this nature were to arise, the SOS should seek additional guidance from the Commission.

In summary, no provision of The Codes Of Ethics would prohibit Mr. Robert A. Landino from being a candidate for, or serving as, Connecticut’s Secretary of State.  Furthermore, no Ethics Code provision would preclude the continuation of his outside business activities, provided this work is carried out in a manner consistent with the Commission’s foregoing advice.

By order of the Commission,

Rosemary Giuliano
Chairperson