Advisory Opinion No. 2003-17

Application Of The Code To DMR Staff Accepting Outside
Employment In Privatized State Group Homes

As one of a number of responses to the State’s budgetary problems, the Department of Mental Retardation (DMR) has decided to transition up to thirty group homes, known as community living arrangements (CLAs), to private sector management.  This decision continues a trend through which approximately 80% of the State’s CLAs are now administered by private sector contractors.  As the process goes forward, the State Ethics Commission has received inquiries from current DMR employees (e.g., nurse, program supervisor) who have been contacted by potential private providers regarding the possibility of part time employment.

In determining whether such outside employment is permissible under The Code Of Ethics For Public Officials, the two principal provisions to be considered are Conn. Gen. Stat. §§1-84(b) and (c).  Pursuant to §1-84(b), no state employee may accept outside employment which impairs independence of judgment with regard to official duties or requires or induces disclosure of confidential state information.  Pursuant to §1-84(c), no state employee may use his or her public position or confidential information for personal financial gain.  In applying these provisions, the Commission is guided by its Regulations which, in pertinent part, state that §§1-84(b) and (c) do not prevent a state employee from using his or her expertise, including experience gained in state service, for personal gain as long as no Code provision is violated.  The Regulation goes on to state that, in general, §§1-84(b) and (c) are violated when a state employee accepts outside employment with an entity which may benefit from the employee’s official actions (e.g., the individual in his or her state capacity has specific regulatory, contractual or supervisory authority which can potentially impact the private employer).  See, Regulations of Conn. State Agencies, §1-81-17.

Applying these general provisions to the DMR group home privatization issue, nurses and other direct providers of client care may utilize their expertise as outside employees of DMR’s private contractors.  Such work can be performed in compliance with the requirements of the Ethics Code provided:  patient and other confidential information is strictly protected, as mandated by both the Code and applicable medical standards; and no clinician in any way participates in a referral to his or her private provider/employer.  With regard to this second prohibition, any potential conflict must be resolved by having the placement decision made by a DMR employee who is not subordinate to the conflicted individual.  See. Regulations of Conn. State Agencies §1-81-29.

DMR administrators and other managers are, however, distinguishable; and should not accept outside employment with these private providers.  Simply stated, this managerial class of employees, who exercise contractual, regulatory, supervisory or analogous policy making authority regarding DMR’s clientele, should not serve two masters; one public and the other private and for profit.  Regardless of their good intent, conflicts of interest and impairment of independence of judgment would seem inevitable under these circumstances.  This conclusion applies whether the manager/administrator has direct responsibility concerning privatization or is only more generally involved in determinations regarding levels of client care and cost which will significantly impact the State, the client population and the outside providers.

Those DMR employees with specific concerns not fully addressed by this Ruling should contact a Commission attorney for additional guidance.

By order of the Commission,

Rosemary Giuliano
Chairperson