Advisory Opinion No. 2003-18

Application Of The Conflict Of Interest Provisions Of The Code Of Ethics
To Members Of The Waterbury Financial Planning And Assistance Board

Michael J. Cicchetti, the designated Chairman of the Waterbury Financial Planning and Assistance Board (the “Board”), has asked the State Ethics Commission whether or not certain members of the Board have a conflict of interest.

The Board was established by Special Act No. 01-1.  In essence, responding to a financial emergency, the General Assembly created and empowered the Board to oversee the financial affairs of the City of Waterbury.  Id. at §1.   The Board is composed of the Secretary of the Office of Policy & Management or his designee, who shall serve as the Chairman, the State Treasurer or her designee, the Mayor, and four members appointed by the Governor, one of whom is a resident of Waterbury, one of whom is affiliated with a business located in Waterbury, one of whom has expertise in finance and one of whom shall be the chief executive officer of a bargaining unit representing employees of the City.  Id. at §10(a).  A majority of the voting membership of the Board shall constitute a quorum and the Board shall act by the majority vote of the voting membership Id. at §10(b).  As part of its powers, the Board may decide, after appropriate hearings, which provisions will be included in an approved or awarded collective bargaining agreement and which will not.  Id. at §11(4)

Chairman Cicchetti’s preeminent concern centers on the question of whether the individual who serves as the representative of organized labor may participate when the Board considers the collective bargaining agreement which governs his terms and conditions of employment?

The individual in question, Mr. Jack Cronan, has been the representative of organized labor on the Board since its inception.  Mr. Cronan is also President of the Waterbury Teachers Association (“WTA”), a local union of the Connecticut Education Association which conducts collective bargaining activities on behalf of all of Waterbury’s certified teachers.  He has also been a teacher in the Waterbury school system for over 20 years.

On or before December 2, 2003, the WTA’s contract will be presented to the Board for approval, or for arbitration pursuant to the Special Act.  See, §11(5) of Special Act 01-1.  Given Mr. Cronan’s position and tenure as a teacher, the terms of any new collective bargaining agreement will affect his economic interests, including his potential retirement benefits.  Based on this set of circumstances, Chairman Cicchetti wishes to know whether Mr. Cronan may take part in strategy and negotiation sessions of the Board; and, when the contract is submitted for approval or arbitration, be able to vote on the agreement or on any related issue that may be considered by the Board.

The relevant conflict of interest provisions of the Code in this instance are Conn. Gen. Stat. §§1-85 and 1-86.  Pursuant to §1-85, in pertinent part, a public official has a substantial conflict of interest and may not take official action on a matter if he has reason to believe or expect that he will derive a direct monetary benefit or suffer a direct monetary loss by reason of his official activity.  The official does not, however, have a substantial conflict of interest if any benefit or detriment accures to him as a member of a profession, occupation or group to no greater extent than any other member of such profession, occupation or group.

Pursuant to §1-86, in pertinent part, a public official has a potential conflict of interest if he would be required to take official action that would affect his financial interests, unless such interest is de minimis in nature or not distinct from that of a substantial segment of the general public.  If confronted with a potential conflict, a member of a board, such as Mr. Cronan, has two alternatives.  He may either recuse himself from the matter; or prepare a written statement, signed under penalty of false statement, describing the matter requiring action and the nature of the potential conflict and explaining why, despite the potential conflict, he is able to vote and participate fairly, objectively and in the public interest.

In applying these conflict of interest provisions to the question posed, the Commission believes it is essentially unarguable that Mr. Cronan has a direct, foreseeable financial interest at stake in the negotiation and approval of the WTA contract.  The issue to be determined, pursuant to §1-85, thus becomes whether the exception for benefits which accure as a member of a “profession, occupation or group” applies in this instance.

It strains logic to classify the WTA as comprising an entire “profession” or “occupation.”  Therefore, it must be decided whether it qualifies as a “group” under the statutory language.  In making this determination, the Commission turns to the applicable canon of statutory construction:  the ejusdem generis rule.  In essence, this aid states that in the construction of laws where a general word, e.g. “group,” follows an enumeration of words of more specific meaning e.g., “profession” or “occupation” the general word should be construed in a manner consistent with the more specific terms.  Applying this tenet, the Commission, in the past, has declined to classify a single business entity (e.g. corporation or union) as a “group.”  See, State Ethics Commission v. Mazza (Docket No. 89-2):  wherein the Commission ruled that the stockholders in a specific bank did not constitute a “group” for purposes of §1-85.

The matter under review is, however, distinguishable.  Specifically, in this instance the relevant geographical area is limited to the City of Waterbury, and, in this limited context, utilizing a quantitative analysis, the Commission finds that all certified teacher/union members in the City are a “group” equivalent to other professions or occupations practicing in that locale.  (For example, according to the State’s Department of Health there are 243 licensed physicians in Waterbury.  By comparison, according to the Connecticut Education Association, there are 1,347 certified teachers in Waterbury.)

As a consequence of this analysis, the Commission finds that Mr. Cronan does not have a substantial conflict of interest under §1-85.

Turning to §1-86, the Commission reiterates its finding that official action by the Board regarding the WTA contract will unquestionably affect “a financial interest” of Mr. Cronan as that term is used in the statute.  The Commission further finds that such effect will not be de minimis (i.e., less than $100 gain or loss in a year)  See, Regulations of Conn. State Agencies §1-81-30(a).  Finally, the Commission finds that the interests of the WTA membership are not those of a “substantial segment of the general public” as that term is used in the statute.  See, §1-81-30 at (b):  “A substantial segment of the general public is greater than one’s profession, occupation, or group…Consistent with the commonly understood usage of the term, a substantial segment of the general public is a considerable or large part…e.g., all licensed drivers, all homeowners, all parents, etc.

Given these findings, it is the Commission’s conclusion that Mr. Cronan does have a potential conflict under§1-86 of the Code.  As detailed supra, pursuant to the statutory procedure Mr. Cronan may, under these circumstances, either abstain from participation in the Board’s consideration of the WTA contract or may participate in the Board’s deliberations and vote after filing the requisite “§1-86 statement.”  Most importantly, the Commission advises and Mr. Cronan concurs that any §1-86 statement prepared by him must include an explicit agreement not to take part, as Union President, in the WTA’s sessions regarding the pending contract.  Absent such an agreement, Mr. Cronan’s participation in the Board’s strategy and negotiation sessions would place him on both sides of the issue; and risk impermissible use of confidential information, however inadvertently, in violation of §§1-84(b) and (c) of the Code.

The Commission believes its holding that Mr. Cronan should be permitted to participate in consideration of the WTA contract is further supported by the statutory framework of Special Act No. 01-1.  Specifically, as previously noted, the Act denominates that one of the Board members be the chief executive of one of the City’s employee unions; and, at the same time, gives the Board authority to approve or reject all collective bargaining agreements for these unions.  As the Commission has long held, when the General Assembly appoints an individual to an office where such an inherent conflict exists, the Legislature is, in essence, making a policy determination that the individual’s specific experience and expertise outweigh the potential conflicts.  See, e.g., Advisory Opinion No. 80-20, 42 CLJ 26, p. 21 (December 23,  1980).

Lastly, the Commission turns to Chairman Cicchetti’s subsidiary questions.  Specifically, he asks whether two other Board members, each of whom has one or more adult children who are WTA members, have conflicts of interest under the Code; and whether he has a personal conflict, since his aunt is a WTA member.  Given that §1-86 extends to one’s children, whether dependent or not, each of these two Board members should also act pursuant to §1-86 by recusing themselves or filing the necessary disclosure statement.  With regard to the Chairman, the §1-86 provision does not extend to one’s aunt; and he, therefore, has no conflict under the Ethics Code.

By order of the Commission,

Rosemary Giuliano
Chairperson