Advisory Opinion No. 2004-5

Application Of Code Of Ethics For Public Officials To State
Employee Running For Governor

Joel Schweidel, a Principal Personnel Officer in the Labor Relations Unit of the Department of Corrections (“DOC”), and his unit head, Daniel Callahan, have asked the State Ethics Commission how the Code of Ethics for Public Officials, Conn. Gen. Stat. §1-79 et seq., applies to Mr. Schweidel as he pursues a campaign for governor.  Mr. Schweidel has already established a candidate committee pursuant to Conn. Gen. Stat. §9-333a(4) for that purpose with the Secretary of State.  In his state job, Mr. Schweidel currently presents the management side of labor cases for DOC, an occupation which results in extensive contacts with unions.  Previously, he was Chief Negotiator for AFSCME’s NP-4 Corrections Unit.  According to Mr. Schweidel and Mr. Callahan, Mr. Schweidel would like to solicit union members to contribute funds to his campaign and/or volunteer to work on the campaign.  It is anticipated that at least one AFSCME union officer may play a major role in Mr. Schweidel’s campaign.  Of course, such campaign work by the union official and Mr. Schweidel, must not be done on state time, nor use state materials.

The campaign activities of state employees are generally governed by the provisions of Conn. Gen. Stat. §5-266a, which is not within the jurisdiction of the State State Ethics Commission.  The Commission does have jurisdiction over one regulation, §5-266a-1, Regulations of Connecticut State Agencies, but that provision regulates the holding of elective municipal office by classified state employees, and is therefore not relevant to the question now posed.  The Code of Ethics does, however, prohibit a state employee from using his state position for the financial gain of, among others, himself or a business with which he is associated. Conn. Gen. Stat. §1-84(c).  The Code also prohibits the solicitation or acceptance of anything of value, including a political contribution, based on any understanding that the vote, official action or judgment of the state employee would be or had been influenced thereby. Conn. Gen. Stat. §1-84(g).  Finally, the Code prohibits a state employee from knowingly accepting a gift from any lobbyist, or any person the employee knows or has reason to know is regulated by his agency or department. Conn. Gen. Stat. §§ 1-84(m) and 1-84(j).  The Code, however, also exempts from its definition of “gift” (1) a properly-reported political contribution and (2) services provided by persons volunteering their time. Conn. Gen. Stat. §§1-79(e)(1) and 1-79(e)(2). See Advisory Opinion No. 2004-3, ___ Conn. L.J. ___, p. __ ( ). Accordingly, the gift prohibitions of §§ 1-84(m) and 1-84(j) are inapposite to Mr. Schweidel’s question.

Applying the aforementioned rules to the facts presented, it would, of course, violate the Code of Ethics for Mr. Schweidel to accept a contribution that is given with the understanding that his official actions would be affected thereby. Conn. Gen. Stat. §1-84(g).   The more difficult issue raised is the application of the “use of office” provision of §1-84(c) to the solicitation and/or acceptance of campaign contributions or volunteered services from employees either supervised by Mr. Schweidel or subject to his authority as a personnel officer.  The Code of Ethics does not contain any language prohibiting a DOC employee or AFSCME union member from independently donating his or her money or time to Mr. Schweidel’s campaign.  As stated above, regulation of the political activities of state employees is not within the jurisdiction of the State Ethics Commission.

Turning to Conn. Gen. Stat. §1-84(c), however, it would only constitute a use of his office for financial gain if Mr. Schweidel’s candidate committee could be used for his own personal financial gain, or the candidate committee otherwise constituted a business with which he is associated under Conn. Gen. Stat. §1-79(b).  Taking those issues in turn, first, pursuant to Conn. Gen. Stat. §9-333i(g)(4), a candidate is proscribed from using candidate committee goods, services, funds or contributions for his or his immediate family’s personal use. Second, under §1-79(b), a business with which one is associated is

any sole proprietorship, partnership, firm, corporation, trust or other entity through which business for profit or not for profit is conducted in which the public official or state employee or member of his immediate family is a director, officer, owner, limited or general partner, beneficiary of a trust or holder of stock constituting five per cent or more of the total outstanding stock of any class, provided, a public official or state employee, or member of his immediate family, shall not be deemed to be associated with a not for profit entity solely by virtue of the fact that the public official or state employee or member of his immediate family is an unpaid director or officer of the not for profit entity.

By definition, candidate committees are not-for-profit entities.  While it does not appear that Mr. Schweidel is an officer of his candidate committee, even if he were, he is not paid.  Accordingly, his candidate committee is not a business with which he is associated as that term is used in Conn. Gen. Stat. §1-84(c).

Having concluded that Mr. Schweidel is proscribed by elections laws from using his candidate committee for his personal use, and that said committee is not a business with which he is associated under the Code of Ethics, the Commission must conclude that the Code’s use of office for financial gain provision is not applicable to this situation.  A review of other candidates’ situations reveals that, except for certain very specific limitations (e.g., the restrictions on contributions to candidates for Treasurer contained in Conn. Gen. Stat. §9-333n), candidates are permitted to, and oftentimes do, solicit campaign funds from people from over whom they have some potential level of authority.

Mr. Callahan has also asked whether Mr. Schweidel can utilize public lists of state e-mail addresses to solicit campaign contributions.  If the lists are public and equal access is available to any other candidate for any other office, then the Code of Ethics would not prohibit such activity.  There are, however, other restrictions on the use of the state e-mail system not found within the Code of Ethics, and Mr. Schweidel should seek and receive the appropriate approval before proceeding in this manner.  Moreover, while not within the Commission’s jurisdiction, the Commission would advise Mr. Schweidel to take cognizance of the campaigning restrictions placed on state employees in the Judicial Department and classified service by Conn. Gen. Stat. §5-266a.  Using the state e-mail lists could put other state employees in jeopardy of violating that provision if, for example, they forwarded an e-mail solicitation of Mr. Schweidel’s.

Finally, Mr. Callahan has indicated in his correspondence that the DOC is “presently looking at reassigning Mr. Schweidel to different duties at least temporarily.”  While not required under the Code of Ethics, the State Ethics Commission commends the DOC for offering a practical solution to what some might believe constitutes the appearance of a conflict – if not an actual conflict -- raised by Mr. Schweidel’s campaign.

Respectfully submitted,

Rosemary Giuliano
Chairperson