Advisory Opinion No. 2004-4

Application Of The Code Of Ethics To The Governor’s Legal Defense Fund

(Superseded by Statute, § 1-86d)

Susan Bysiewicz, Secretary of the State, and Senator Donald DeFronzo and Representative James O’Rourke, Chairmen of the Government Administration and Elections Committee of the General Assembly, have asked the State Ethics Commission for an advisory opinion regarding the Governor’s legal defense fund.  Specifically, under the provisions of The Code Of Ethics For Public Officials, they wish to know:  whether contributions to the fund constitute gifts; what, if any, restrictions apply to various classes of prospective donors (including lobbyists, state contractors, public officials and state employees); and whether the fund’s list of contributors should be confidential or open to public inspection?

Pursuant to Conn. Gen. Stat. §1-79(e), with exceptions not pertinent, a “[g]ift means anything of value, which is directly and personally received, unless consideration of equal or greater value is given in return.”  Although the contributions in question are being solicited by and donated to a trust established for that purpose, the monies collected are specifically intended to pay the costs of the Governor’s and Mrs. Rowland’s personal legal defense in various matters.  Given these facts, such monetary contributions are clearly a gift to the Governor.

Pursuant to Conn. Gen. Stat. §1-84(j), “No public official…shall knowingly accept any gift…from a person known to be a registrant or anyone known to be acting on behalf of a registrant.”  Under this provision, no registered lobbyist may donate more than ten dollars to the Governor’s legal defense fund.  See, Conn. Gen. Stat. §1-79(e)(16), which exempts gifts “…having a value of not more than ten dollars…”  In applying this restriction, it is important to remember that the terms “registrant” and “lobbyist” apply to both the entity represented (i.e., the “client lobbyist”) and the individual doing the lobbying (i.e., the “communicator lobbyist”).  See Conn. Gen. Stat. §§1-79(p) and 1-91(v).  Additionally, pursuant to Conn. Gen. Stat. §1-79a, a “business organization” (i.e., a business entity, other than a client lobbyist, which is owned by, or employs, one or more individual lobbyists, Conn. Gen. Stat. §1-79(o)) may only donate ten dollars in the aggregate from all of its lobbyist members or employees.

Pursuant to Conn. Gen. Stat. §1-84(m), in pertinent part, “No public official…shall knowingly accept, directly or indirectly, any gift…from any person the official or employee knows or has reason to know:  (1) is doing business with or seeking to do business with the department or agency in which the official or employee is employed…”  As set forth in State Ethics Commission Advisory Opinion No. 2004-2 ___ CLJ No. ___, p. ___ (  ), this provision will restrict, to not more than ten dollars, donations from any state contractor:  that, within the last year, has contacted the Office of the Governor for assistance in obtaining a contract; or has had its contract in any way authorized or approved by the Office of the Governor.  In applying the restrictions of §1-84(m) to state contractors, in order to prevent circumvention of the intent of the law, the Commission will utilize the elements of the definition of “business with which…associated” set forth in Conn. Gen. Stat. §1-79(b).  Under this definition, gifts of more than ten dollars will be prohibited, if made by the contracting entity, or its owners, directors, partners or principal officers.

Pursuant to Conn. Gen. Stat. §1-84(c), “No public official…shall use his public office or position…to obtain financial gain for,” among others, himself or his spouse.  Since 1998, the Commission has consistently interpreted this provision to bar the receipt of gifts, totaling more than one hundred dollars per donor per year, given by virtue of one’s public office.  State Ethics Commission Advisory Opinion No. 98-9, 59 CLJ No. 45, p. 5D (5/5/98); see, also, State Ethics Commission Advisory Opinion No. 2004-2, ___ CLJ No. ___, p. ___ (     ).  In this instance, however, it is likely that donors will be motivated by a range of factors:  e.g., support for the Governor and his record; support for the head of the State Republican Party; support for John Rowland personally; or a belief that a public official should have the necessary funds to defend himself in a public inquiry.  Only the first of these motivations may fall directly within the purview of §1-84(c) as applied by the State Ethics Commission. 

As a result, in order to prohibit potentially inappropriate contributions from those most likely to donate by virtue of the Governor’s official position, the Commission advises and the Governor agrees not to solicit or accept contributions from the following classes of persons:  employees of the Governor’s Office; full-time appointees of the governor (e.g., commissioners); citizen commissioners appointed by the Governor who are required to file annual Statements of Financial Interests (e.g., the members or directors of the quasi-public agencies; the members of the Gaming Policy Board; the members of the Investment Advisory Council; and the members of the State Ethics Commission); and those individuals and entities with contested cases (as defined in Conn. Gen. Stat. §4-166(2)) pending before an Executive Branch agency.

With these prohibitions in place, the Commission will authorize contributions of up to $2,500 (the campaign finance limit for individual contributions to candidates for Governor) from members of the general public, as requested by the Governor.  In allowing such contributions, the Commission recognizes the rights of those individuals wishing to contribute to the Fund for a variety of personal reasons not specifically linked to the Governor’s official position.  Additionally, the Commission takes cognizance, in general, of the need for public officials to raise substantial funds for the purpose of defending themselves in various public proceedings.

In order to insure the integrity of the Legal Defense Fund under the requirements of the Ethics Code, the Commission further advises and the Governor agrees to the following:

The Legal Defense Fund will continue as a blind trust, with the names of the contributors and amounts of their contributions withheld from the Governor.  To insure this status, donors will be required to sign sworn affidavits stating their agreement to keep confidential the fact and amount of their donations.  With regard to this blind trust, the Commission wishes to note that the purpose of donor and donation confidentiality is not to deny this information to the public or the media.  Rather, consistent with established conflict of interest law, the purpose is to prevent donors from inappropriately seeking, or the Fund recipient from inappropriately granting, favorable treatment as a result of one’s contribution.  Additionally, the Fund will be subject to audit by the staff of the State Ethics Commission for the sole purpose of verifying compliance with the requirements of this Ruling.  Finally, any dispute as to the legality of a contribution will be decided by the State Ethics Commission.

In closing, the Commission notes that, because of tax implications, the Fund, upon payment of all outstanding legal bills, will be required to turn over any remaining monies to the Governor and Mrs. Rowland.  The Governor has stated, and the Commission therefore expects, that all such proceeds of the Fund will be donated to charity.

By order of the Commission,

Rosemary Giuliano
Chairperson