July 3, 2008 |
2008-R-0353 | |
ETHICS CODES | ||
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By: Sandra Norman-Eady, Chief Attorney | ||
You asked us to compare the 1995 model ethics code for municipalities and special districts drafted by the State Ethics Commission to the State Code of Ethics.
SUMMARY
By law, municipalities (towns, cities, districts, and boroughs) may adopt a code of ethical conduct and establish a board, commission, council, committee, or other agency to investigate allegations of unethical conduct (CGS § 7-148 (c) (10) (B) and -148h). Some municipalities have exercised this authority and others have not. In 1994, the General Assembly passed PA 04-172 to assist municipalities that had not adopted a code. That act required the State Ethics Commission to (1) develop a model ethics code for municipalities and one for special districts, (2) provide a copy of the applicable code to each municipality's chief elected official and each special district's president, and (3) enforce it for any municipality or district that asked. In 1995, the General Assembly repealed the requirement for the commission to enforce the code.
The commission completed the model code in the summer of 1995 and provided it to municipalities. At the time of completion, the model code closely resembled the State Code of Ethics. Today, after numerous amendments to the State Code of Ethics, especially PA 05-183 and PA 05-3, JSS, which abolished the State Ethics Commission and created the Office of State Ethics, there are major differences between the two codes. These differences include the absence in the model code of (1) an ethics code for lobbyists, (2) a requirement for local commissions to provide ethics training, and (3) a requirement for local commissions to provide a summary of ethics laws for contractors and potential contractors. All of these are addressed in the state code.
Finally, a few of the recommended model provisions are inconsistent with the state law applicable to municipalities. For example, the model code provisions on investigating ethics complaints differ from state law codified at CGS § 7-148h (a).
Despite these differences, the core components of the codes are the same. Both establish an agency to administer and enforce the code; establish a complaint, investigation, and hearing process; apply to officials and employees; prohibit certain activities while in public office or employment and afterwards; require certain officials and employees to file statements of financial interests; and impose penalties for ethics violations.
ETHICS CODE COMPARISONS
Ethics Agencies
An agency administers and enforces each code. As part of their administration, the agencies issue and maintain advisory opinions and prepare annual reports of their activities. The state and municipal agencies can hire staff. Unlike the model code, the state code requires the Office of State Ethics (OSE) to include an executive director, general counsel, and ethics enforcement officer. OSE also includes a Citizen's Ethics Advisory Board, which serves as the office's governing body. OSE staff perform the agency's daily administrative functions.
Members of the municipal agency and Citizen's Ethics Advisory Board must be electors, but are prohibited from engaging in other specified political activities. Table 1 compares the local ethics commission to the Citizen's Ethics Advisory Board. The differences are size, terms, and cooling off period for public office holders. The state code also prohibits registered lobbyists from serving on the Citizen's Ethics Advisory Board. Lastly, members of the Citizen's Ethics Advisory Board and other OSE staff are subject to an additional ethics code. Among other things, the state code prohibits board members from taking a job in state government for one year after serving on the board. (In tables 1-8, the first citation refers to the model municipal code, the second citation refers to current State Ethics Code.)
TABLE 1: ETHICS AGENCIES
Model Municipal Code |
Current State Ethics Code | |
Ethics Commission MC §§ 1-2 to 1-3 CGS §§ 1-80, -80b, and -81 |
Size: 5 members Term: 3 years—no reappts. Quorum: 3 members Party Representation: Max. 3 Political Prohibitions: cannot hold or campaign for public office, have held office within past 2 years, hold office in a political party or committee, publicly support a candidate within the commission's jurisdiction |
Size: 9 members Term: 4 years—no reappts. Quorum: 6 members Party Representation: Max. 5 Political Prohibitions: cannot hold or campaign for public office, have held office within past 3 years, hold office in a political party or committee, serve as a member of any organization or association organized primarily to influence legislation or agency decisions, be a registered lobbyist |
Complaints
Both ethics agencies can investigate complaints of unethical conduct based upon their own complaint or upon a formal complaint signed under penalty of false statement. Both agencies may determine the need for a complaint by conducting a preliminary investigation or evaluation.
The complaint and investigation or preliminary investigation, as the case may be, are confidential unless the respondent requests otherwise. The commission must shield the identity of informants unless disclosure is unavoidable during an investigation. Both codes require that complaints be filed within five years of the alleged violations.
The codes require the ethics agency to acknowledge receipt of the complaint to the complainants and give the people targeted by it (respondents) notice and a copy of it. Municipal agencies must do so within 10, and the state agency within five, days after receipt. Table 2 compares the two complaint procedures.
ETHICS COMPLAINTS
Model Municipal Code |
Current State Ethics Code | |
Ethics Complaints §§ 1-4 & 1-5 CGS §§ 1-82 to 1-82a |
Filers: Anyone, including commission Statute of Limitations: 5 years Notice: Complainant and respondent notified within 10 days after receipt Review: Commission reviews for validity. Complaints that do not allege violations are dismissed and returned. Confidential?: Yes, until a violation is found unless or respondent requests otherwise |
Filers: Same Statute of Limitations: Same Notice: Complainant and respondent notified within 5 days after receipt Review: Commission reviews for validity. Confidential?: Yes, until probable cause determined unless respondent requests otherwise |
Ethics Investigations and Hearing
The state code provides a three-step process for handling complaints filed by the public. It begins with an investigation to determine probable cause, followed by a probable cause hearing, and ending with a public hearing to determine whether a violation occurred. The model code contains a one-step process. Both codes prohibit anyone from retaliating against someone who provides information to the ethics agency.
Model Code. Under this code, the commission must review complaints filed by the public to determine if they state a charge properly within the committee's jurisdiction (i.e., allege a code violation). If the complaint does not allege conduct that constitutes an ethics violation, the commission must dismiss the complaint and notify all parties of the dismissal.
The commission must investigate any alleged violation and schedule a hearing within 30 days after determining that the complaint alleges sufficient acts to constitute a violation. If it makes an affirmative decision, the commission must schedule a hearing on the complaint within 60 days after the date the complaint is filed. The administrative rules of evidence apply at the hearings.
During complaint investigations, the commission may hold hearings, administer oaths, examine witnesses, receive oral and documentary evidence, and subpoena witnesses and records. The commission may use municipal police to exercise its powers. Respondents have the right to appear, be represented by counsel, and cross-examine witnesses.
State Code. This code requires a judge trial referee (JTR) to determine probable cause within 30 days after the ethics enforcement officer refers the case. The referee may extend the 30-day deadline for good cause. He or she must publish findings within five days after the deadline. If the JTR finds no probable cause to believe the code was violated, the (1) complaint and record and the OSE's investigation remain confidential unless the respondent requests otherwise and (2) board must pay the respondent's reasonable legal expenses as determined by the attorney general or a court.
The board must initiate a hearing presided by a JTR to determine if a violation has been committed within 30 days after the probable cause determination and conclude it 90 days later. A JTR may extend these deadlines for good cause shown. The JTR who presides over the hearing must be different from the one who conducted the probable cause hearing.
Table 3 compares code provisions on investigations and complaints.
TABLE 3: INVESTIGATIONS AND HEARINGS
Model Municipal Code |
Current State Ethics Code | |
Ethics Investigation §§ 1-4 & 1-5 CGS §§ 1-82, 1-82a, and 1-87 |
Powers: hold hearings, administer oaths, exercise subpoena power, examine witnesses Confidential?: Yes, unless respondent requests otherwise |
Powers: Same Confidential?: Yes, until probable cause is found unless respondent requests otherwise |
Hearing §§ 1-4 & 1-5 CGS §§ 1-82, 1-82a, and 1-87 |
Date: Scheduled within 30 days after complaint received and held within 60 days after complaint received Rules of Evidence Apply: Yes Confidential: Yes, unless commission finds a violation Right to Appear/Counsel: Yes Notice of Decision: Within 3 business days Public Notice: Within 5 days after hearing if violation found Appeal: To Superior Court within 30 days after decision |
Probable Cause Date: Unspecified, however probable cause must be determined within 30 days after the case is delivered to the JTR Rules of Evidence Apply: Yes Confidential: Yes, unless respondent requires otherwise Right to Appear/Counsel: Yes Notice of Decision: Parties notified of findings within 3 business days Public Notice of Decision: Within 5 business days after hearing if violation found Violation Hearing Date: Within 30 days after probable cause found and concluded within 90 days Rules of Evidence Apply: Yes Confidential: No Right to Appear/Counsel: Yes Notice: Board must publish its findings and reasons within 15 days after the hearing Appeal: To Superior Court pursuant to UAPA |
Penalties
Both codes authorize ethics agencies to impose penalties for code violations. Unlike the model code, the state code permits the Office of State Ethics to refer any criminal violations for criminal prosecution and provides enhanced penalties for intentional and subsequent violations. The votes of four members are necessary to find a violation under the model code. Six votes are necessary under the state code. Table 4 compares the penalties.
TABLE 4: PENALTIES FOR CODE VIOLATIONS
Model Municipal Code |
Current State Ethics Code | |
Penalties § 1-6 CGS §§ 1-88 and 1-89 |
● Censure and reprimand ● Public employees may be dismissed or suspended for up to 90 days without pay ● $1,000 civil penalty per violation or ● Restitution |
● Cease and desist the violation; ● file any report, statement, or other information the code requires, including a statement of financial interests; and ● pay a civil fine of up to $10,000 for each violation If the violation is failure to file any report, statement, or other information the code requires, board can, instead of imposing these penalties, require the violator to pay a civil penalty of up to $10 a day. Each distinct violation is a separate offense, and each day of a continuing violation is a separate offense. However, the aggregate maximum penalty cannot exceed $ 10,000. The board may report violations that constitute criminal acts to the chief state's attorney for criminal prosecution. Anyone who knowingly acts in his or her financial interest is liable for damages equal to the amount of the advantage if he or she violates the code provisions on prohibited activities, conflict of interest, or establishing and maintaining a legal defense fund. If the violation is intentional, the attorney general may seek additional damages equal to up to twice the amount of actual damages. Anyone who intentionally violates the code is guilty of a class A misdemeanor for a first offense unless he or she derives a financial benefit of at least $1,000, in which case he or she is guilty of a class D felony. A class A misdemeanor is punishable by up to one year in prison, a $2,000 fine, or both. A class D felony is punishable by up to five years in prison, a $5,000 fine, or both. The penalty for a second or subsequent offense is that of a class D felony. |
Prohibited Activities
Conflicts of Interests. Both codes prohibit public officials and state employees from engaging in certain activities while in public service. The state code contains more gift restrictions than the model code. In addition to prohibiting public officials and employees from accepting gifts, the state code prohibits banned donors from giving them. In some cases, the gift restrictions apply to the immediate families of officials and employees.
The model code, unlike the state code, expressly states that public officials and employees may (1) appear before a municipal board or commission on their own behalf, (2) be a party in an action to which the municipality is a party. Table 5 compares the two.
TABLE 5: CONFLICTS OF INTERESTS
Model Municipal Code |
Current State Ethics Code | |
Conflicts of Interest § 1-7 CGS §§ 1-84 & 1-85 |
Public officials and employees must not: 1. engage or participate in a business that (a) is incompatible with the proper discharge of their public duties, (b) impairs independent judgment, or (c) impairs action on public business 2. solicit or accept a gift from anyone they know is interested in a matter pending before them 3. vote or otherwise participate in a matter if they, an associated business, or an immediate family member has an interest it, unless the matter involves a general policy determination and the interest is shared with a substantial segment of the population 4. unless they are public officials receiving a per diem only, appear on behalf of private interests before a municipal board, agency, or committee or represent private interests in any litigation in which the municipality is a party 5. disclose confidential information or use it to financially benefit themselves or others 6. use municipal property for personal convenience or profit, unless the property is available to the public or intended for use by public officials and employees performing public business 7. enter a contract with the municipality that is not awarded publicly and through competitive bidding. (The prohibition also applies to the immediate family and associate businesses of the officials and employees) 8. use their position for their own financial benefit or that of an associated business or person or immediate family member 9. accept an honorarium for an article, appearance, speech, or participation at an event in their official capacity 10. solicit or accept anything of value based on an understanding that their vote or judgment would be or had been influenced thereby. The solicitation ban also applies to immediate family member and associated businesses |
Public officials and employees must not: 1. Same 2. accept a gift from anyone they know is (a) doing business with or seeking to do business their agency, (b) engaged in activities directly regulated by the agency, or (c) a prequalified contractor 3. Similar 4. appear for pay before any one of 13 regulatory agencies 5. Same 6. use their office or position to obtain financial gain for themselves, or their spouse, family members, or associated business 7. Same, except prohibition applies to contracts valued at $100 or more 8. Same 9. Same 10. Same, except the solicitation ban does not apply to immediate family members or associated businesses 11. accept gifts from registered lobbyists 12. knowingly accept gifts that cost $100 or more from (a) anyone they supervise or (b) their supervisor (their immediate families cannot accept the gifts either) 13. interfere with, influence, direct, or solicit existing or new lobbying contracts 14. counsel, authorize, or otherwise sanction code violations |
Restrictions After Leaving Public Service. The codes also restrict post public service activities. Table 6 compares these.
TABLE 6: POST-SERVICE RESTRICTIONS
Model Municipal Code |
Current State Ethics Code | |
Restrictions on former officials and employees § 1-9 CGS §§ 1-84a and -84b |
Former officials and employees cannot: 1. appear for pay before their former municipal agency for one year after service 2. represent anyone, other than the municipality, in any matter they substantially participated in while in municipal service 3. disclose or use confidential information obtained in their public capacity for their own financial gain or that of others 4. accept employment with a party to a municipal contract costing at least $100,000 for one year after the contract is signed if they participated substantially in awarding or negotiating the contract |
Former officials and employees cannot: 1. Similar. State must have a substantial interest in the matter 2. Same 3. Same 4. Similar. Contracts costing at least $50,000. Prohibition applies for a period of one year after resignation only if the resignation occurs less than one year after the contract is signed |
Consultants
Both codes restrict the activities of consultants working for the state or municipality, as appropriate. The state code restrictions focus on illegal financial gains and undue influences while the model code focuses on representations counter to municipal interests and illegal financial gains.
Specifically, the state code prohibits state consultants and contractors from (1) using their contractual authority or confidential information acquired in performing the contract for financial gain for themselves, their employees, or members of their or their employees' immediate families; (2) accepting another state contract that would impair their independent judgment in performing the existing contract; and (3) taking anything of value based on an understanding that it would influence their actions on behalf of the state. Conversely, it prohibits a person from giving anything of value to a consultant or contractor on the understanding that it would influence his or her actions (CGS § 1-86e).
The model code prohibits paid consultants from (1) representing a private interest in an action against the municipality if the representation conflicts with the consultant's duties, (2) representing anyone other than the municipality in any matter in which the consultant personally and substantially participated, and (3) disclosing confidential information or using it for their financial interests or that of others (§ 1-8).
Statements of Financial Interests
Both codes require public officials and certain public employees to annually file a statement of financial interests with the ethics agency. The statements include financial interests, for the preceding calendar year, of the officials and employees and their spouses and dependent children living in their household. Table 7 compares the two codes.
TABLE 7: STATEMENTS OF FINANCIAL INTERESTS
Model Municipal Code |
Current State Ethics Code | |
Statement of Financial Interest § 1-10 CGS § 1-83 |
Filers: Public officials and any employees the mayor or first selectman designates Due Date: May 1st Public Record?: Yes Statement includes: 1. the names of all people and businesses with which associated; 2. names of all employers; 3. names and addresses of clients, patients, and customers who provided more than $10,000 in net income to the official's or employee's associated business, except when the law or the ethical standards of a professional group, society, or organization prohibit nonconsensual disclosure of the information; 4. all securities in excess of $ 10,000 at fair market value, including those held in the name of a corporation, partnership, or trust for their benefit or the benefit of their spouse or dependent children; 5. all real property located within the municipality or special district owned by the official or employee, his spouse or dependent children, or held by a corporation, partnership, or trust for their benefit; 6. the names and addresses of creditors owed debts of more than $10,000; and 7. any leases or contracts with the municipality held or entered into by the person or an associated business. |
Filers: Same, except the governor designates the employees Due Date: Same Public Record?: Yes, except the names and addresses of creditors are generally confidential Statement includes: 1. the names of associated businesses only 2.-3. all sources of income, including the name of each employer, with a description of each source in excess of $1,000, without specifying the income amounts
4. Similar, securities in excess of $5,000 5. Similar, all real property, regardless to location 6. Same 7. Same, except state contracts 8. the existence of any blind trusts and trustees' names 9. a description of any partnership, joint ownership, or similar business affiliation between an associated business and a registered lobbyist, business doing or seeking to do business with the state, business engaged in activities regulated by filer's agency, or business associated with the lobbyist or person. |
Definitions
Table 8 compares key terms used in both codes. These terms are defined in § 1-1 of the model code and CGS § 1-79 of the state code.
TABLE 8: DEFINITIONS
Model Municipal Code |
Current State Ethics Code | |
Associated business |
A business in which a public official or employee or a member of his or her immediate family serves as director, officer, owner, employee, compensated agent, or stock holder of at least 5% of the shares in any class of stock. |
Similar, also includes businesses in which a public official or employee or a member of his or her immediate family is the beneficiary of a trust |
Financial interest |
Any interest that is worth at least $100 or that generates a $100 gain or loss in a calendar year |
|
Immediate family |
Spouse, child, or dependent relative living in the household |
Same |
Gifts |
Generally anything of value for which consideration of equal or greater value is not received. There are 13 exceptions. |
Generally anything valued at over $10 (up to $50 in a calendar year) for which consideration of equal or greater value is not received. There are 16 gift exceptions |
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