ADVISORY OPINION 2007-2

Application of General Statutes § 1-84 (m) to the Judicial Branch

INTRODUCTION

The Citizen’s Ethics Advisory Board issues this advisory opinion at the request of Attorney Martin Libbin, Deputy Director in the Legal Services Unit of the judicial branch’s Court Operations Division.  In that request, Attorney Libbin asks how the gift ban in General Statutes § 1-84 (m)[1] applies to gifts given to employees of the judicial branch by attorneys admitted to practice law in Connecticut.  More specifically, he asks, for purposes of that provision: (1) whether such attorneys are “directly regulated” by the Superior Court, and (2) whether the judicial branch and its components constitute a single state “department or agency.”

BACKGROUND

            The following background is relevant to this opinion.  The Superior Court, which has the power to suspend or disbar the roughly 30,000 attorneys admitted to practice law in Connecticut, is part of the judicial branch—which “[f]or the purposes of the general statutes . . . means the Judicial Department.”  General Statutes § 51-1a (a). 

The Judicial Department is headed by the Chief Justice of the state Supreme Court; General Statutes § 51-1b (a); and comprises, in addition to the Superior Court, the following entities: the Supreme and Appellate Courts; the courts of probate; the Public Defender Services Commission (as provided in chapter 887[2]); and the Office of the Chief Court Administrator and its employees and divisions.  General Statutes § 51-1a (a).  Its core mission (as stated on its website) is “to resolve matters brought before it in a fair, timely, efficient and open manner.”

            To provide services necessary to accomplish that mission, various administrative divisions have been established.  For example, the Court Support Services Division was “established . . . within the judicial branch consisting of the Office of Adult Probation, the Office of Alternative Sanctions, the Office of the Bail Commissioner, the Family Division, and the Juvenile Detention Services Division.”  General Statutes § 51-1d.  Other such divisions[3] include, for example, the Administrative Services Division, which provides “centrally conducted, statewide services” (such as financial services) for the benefit of all divisions within the Judicial Department; and the Information Technology Division, which prints and distributes all Judicial Department publications and is responsible for, among other things, networks and systems support.

            Sitting atop the Judicial Department’s administrative pyramid is the Chief Court Administrator, an appointee of the Chief Justice responsible for “the efficient operation of the department, the prompt disposition of cases and the proper administration of judicial business . . . .”  General Statutes § 51-5a.  To facilitate these statutorily-imposed responsibilities, the Office of the Chief Court Administrator is given substantial control over the activities of the entire Judicial Department.  For example, among myriad other duties: it audits all bills to be paid from state appropriations for the expenses of the Judicial Department; it prepares and submits to the appropriate state budget agency estimates of appropriations necessary for the maintenance and operation of the Judicial Department; it supervises all purchases of commodities and services for the Judicial Department; it serves as a payroll officer for the Judicial Department; and it develops personnel standards, procedures, and policies.  General Statutes § 51-9 (1), (3), (5), (10), and (14). 

Included among these personnel policies is a Judicial Department ethics policy, which covers, among other topics, the receipt of gifts.  In its current form, the ethics policy includes attorneys admitted to practice law in Connecticut in the category of persons from whom employees of the Judicial Department may not accept gifts.  Specifically, it provides that no employee of the Judicial Department may “knowingly accept . . . a gift . . . from any person the employee knows or has reasons to know . . . is engaged in activities, including the practice of law, that are directly regulated by the Judicial Branch.”  (Emphasis added.)  Further, it contains a prohibition on gifts to its employees that is more stringent[4] than provisions in the Code of Ethics for Public Officials (Code of Ethics).

            In consideration of bringing the Judicial Department policy on the receipt of gifts into line with the Code of Ethics, Attorney Libbin, at the request of the current Chief Court Administrator, Judge William J. Lavery, seeks “an opinion concerning the proper application of the gift ban in . . . § 1-84 (m) to Connecticut attorneys giving gifts to various judicial branch employees.”

QUESTIONS

Attorney Libbin asks, for purposes of § 1-84 (m): (1) whether attorneys admitted to practice law in the state of Connecticut are “directly regulated” by the Superior Court, and (2) whether the Judicial Department and its components constitute a single state “department or agency.”

ANALYSIS

1.         “Directly Regulated”

We must first determine whether attorneys admitted to practice law in Connecticut are “directly regulated” by the Superior Court within the meaning of § 1-84 (m), the relevant portion of which provides as follows:  No public official or state employee may knowingly accept a gift from any person he or she knows or has reason to know is engaged in activities that are “directly regulated by” the department or agency in which he or she is employed.  General Statutes § 1-84 (m) (2). 

The terms “directly” and “regulated” are not defined by statute, and thus we “look to the common understanding of the term[s] as expressed in the dictionary.”  State v. Indrisano, 228 Conn. 795, 809, 640 A.2d 986 (1994); see General Statutes § 1-1 (a) (“[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language”).  Webster’s Third New International Dictionary defines “directly” as “marked by absence of an intervening agency, instrumentality, or influence”; it defines “regulate” as “to govern or direct according to rule . . . .”  Given that the Superior Court has the power (i.e., there is no intervening agency) to suspend or disbar Connecticut attorneys for violating the rules of attorney conduct, it is clear, we believe, that such attorneys are “directly regulated” by the Superior Court within the meaning of § 1-84 (m) (2).    

            We must still consider Advisory Opinion No. 2002-1, in which the former State Ethics Commission (former Commission) confronted the term “directly,” as it is used in § 1-84 (m) (2).  In that opinion, the question was how § 1-84 (m) (2) applied to officials and employees of the Department of Revenue Services (DRS), which “regulates virtually all Connecticut citizens through its administration and enforcement of the state’s taxation statutes and regulations.”  Advisory Opinion No. 2002-1.  Latching onto the term “directly,” the former Commission—without citing a definition of the term—stated:  For purposes of departments and agencies having “regulatory authority over all or substantially all of Connecticut’s populace ‘directly regulated by’ should be limited to those individuals and entities over which the department or agency is exercising actual regulatory authority.”  (Emphasis added.)  Id.  And on that basis, it concluded that § 1-84 (m) (2) “will be interpreted to prohibit gifts from persons selected for or currently being audited by [DRS] and from persons otherwise involved in contested matters with [DRS].”  Advisory Opinion No. 2002-1.     

Even assuming, for the sake of argument, that we agree with the conclusion reached in Advisory Opinion No. 2002-1, we nonetheless see no application of it to the facts at hand.  The conclusion reached in that opinion was expressly limited to departments and agencies with “regulatory authority over all or substantially all of Connecticut’s populace.”  Advisory Opinion No. 2002-1.  Here, although the Superior Court has regulatory authority over the roughly 30,000 attorneys admitted to practice law in Connecticut, it can hardly be deemed to have regulatory authority over “substantially all” of Connecticut’s population.  Accordingly, we conclude that, for purposes of § 1-84 (m) (2), attorneys admitted to practice law in Connecticut are “directly regulated” by the Superior Court. 

2.         “Department or Agency”

We must next address whether the Judicial Department and its components constitute a single state “department or agency” within the meaning of § 1-84 (m), which, again, provides in relevant part as follows:  No public official or state employee may knowingly accept a gift from any person he or she knows or has reason to know is engaged in activities that are directly regulated by the “department or agency” in which he or she is employed.  General Statutes § 1-84 (m) (2).

To answer that question, we turn for guidance to a decision of the United States Court of Appeals for the Fourth Circuit ,[5] Board of Governors of the University of North Carolina v. Department of Labor, 917 F.2d 812 (4th Cir. 1990), cert. denied, 500 U.S. 916, 111 S. Ct. 2013, 114 L. Ed. 2d 100 (1991).  In that case, the court had to determine whether the University of North Carolina (UNC) system constituted “a single, unified state agency, of which the University’s campuses [were] merely subagencies.”  Id., 813.  Focusing its inquiry on the statutory scheme under which UNC and its campuses were organized, the court first addressed the composition of the UNC system.  Id., 816.  According to the court, the statute constituted the Board of Governors of UNC as “a body politic and corporate,” a status not granted to its sixteen campuses.  Id.  Also, it noted, the statute provided “that UNC ‘shall be composed of’ the constituent institutions and it expressly state[d] that the ‘North Carolina School of Arts is part of the University of North Carolina.”  (Emphasis added.)  Id.

The court then addressed the administration of the UNC system.  Id.  Granting that the individual campuses enjoyed a substantial measure of autonomy, the court stated that this was true because of the independence that the Board of Governors had “allowed to the campuses, and not because of any autonomy with which they are inherently endowed under the relevant statutes.”  Id.  According to the court, it was the Board of Governors that was statutorily “charged with the ‘general determination, control, supervision, management and governance of all affairs of the constituent institutions.’”  Id.  As such, the court noted, it was responsible for determining the academic mission and enrollment level of each campus; setting the tuition for each campus; preparing a single budget for the entire university system; and appointing the senior administrative staff and tenured faculty of each campus.  Id., 814.  Based on all of these factors, the court concluded that the UNC system was, “by definition, one state agency, not sixteen separate, independent agencies.”  (Internal quotation marks omitted.)  Id., 816.

We conclude likewise with respect to the Judicial Department.  Under the statutory scheme that organized the Judicial Department and its components, the judicial branch is explicitly titled a “department”:  “For purposes of the general statutes, ‘judicial branch’ means the Judicial Department.”  General Statutes § 51-1a (a).  As to the composition of the Judicial Department, the statute provides that it “shall consist of” its various components; General Statutes § 51-1a (a); and it further provides that the “Court Support Services Division [is] within the judicial branch . . . .”  (Emphasis added.)  General Statutes § 51-1d. 

As to the administration of the Judicial Department, its various components most certainly exercise a certain degree of administrative autonomy.  Nevertheless, it is the Chief Justice of the Supreme Court, the statutory head of the Judicial Department, who is ultimately responsible for its administration.  General Statutes § 51-1b (a).  The Chief Justice, in turn, is mandated by statute to appoint a Chief Court Administrator, the “administrative director of the Judicial Department [who is] responsible for the efficient operation of the department, the prompt disposition of cases and the prompt and proper administration of judicial business . . . .”  General Statutes § 51-5a.  To that end, the Office of the Chief Court Administrator is responsible for, among other things: auditing all bills to be paid from state appropriations for the expenses of the Judicial Department; preparing one budget for the entire Judicial Department; supervising all purchases of commodities and services for the Judicial Department; serving as a payroll officer for the Judicial Department; and developing personnel standards, procedures, and policies.  General Statutes § 51-9 (1), (3), (5), (10), and (14). 

In sum, given the unitary character of the Judicial Department, as displayed in the statutory scheme, we conclude that it is a single state “department or agency” within the meaning of § 1-84 (m) (2). 

CONCLUSION

            It is the opinion of the Citizen’s Ethics Advisory Board that, for purposes of § 1-84 (m): (1) attorneys admitted to practice law in the state of Connecticut are “directly regulated” by the Superior Court, and (2) the Judicial Department and its components constitute a single state “department or agency.”  Thus, employees of the Judicial Department are prohibited from accepting any “gift,” as defined in General Statutes § 1-79 (e), from attorneys admitted to practice law in Connecticut.

By order of the Board,

Patricia T. Hendel, Chairperson

Dated January 25, 2007