In his “Government Watch” column in The Hartford Courant last week, Jon Lender writes about a proposal by state House and Senate Republicans to “enact legislation stating that no member of the state Appropriations Committee can work for an entity that receives grant money or budget line items from the state.”  Although it does not mention her by name, the proposal is plainly aimed at Sen. Beth Bye, the West Hartford Democratic who co-chairs Appropriations.

As Lender reports, Sen. Bye “secured an $80,000-a-year job last month as executive director of the 4-H Education Center at Auerfarm — a nonprofit operation in Bloomfield, in her Senate district and adjacent to her hometown of West Hartford — which has received of hundreds of thousands of state taxpayer dollars in recent years.”

Before accepting the job with Auerfarm, Sen. Bye sought and received the opinion of the Office of State Ethics, which said that accepting the position would not constitute a conflict of interest under state ethics laws.  But House Minority Leader Themis Klarides, R-Derby, argues that although an actual conflict of interest does not exist, there is still an appearance of a conflict because Sen. Bye has the potential to vote on legislation that might result in state funding for her new employer.  According to Rep. Klarides, Sen. Bye should either resign her job or resign as co-chair of Appropriations.

I think it is fair for Republicans, the press and the public to ask whether Sen. Bye has an actual or apparent conflict of interest and whether an appearance of a potential conflict, in and of itself, is sufficient grounds to disqualify her from her position on Appropriations.  Ultimately, however, I don’t believe the appearance argument is compelling in this case.

Connecticut has long prided itself on having a part-time “citizen” legislature.   That means that most legislators, unless they are independently wealthy, have another job in the private workforce.  Historically, that has been a feature of our system, not a bug.  We draw people from all sorts of backgrounds, experiences and professions and ask them to bring what they know from their non-legislative work to the General Assembly.

Section 1-85 of the state ethics code acknowledges this reality and recognizes a conflict of interest if a public official “has reason to believe or expect that he, his spouse, a dependent child, or a business with which he is associated will derive a direct monetary gain or suffer a direct monetary loss, as the case may be, by reason of his official activity.”

Virtually any legislation that involves taxes or spending has the potential to affect a legislator’s pocketbook in some respect.  For example, every year legislators vote on municipal aid legislation.  All things being equal, the more money a town receives from the state, the less it has to collect in property taxes to fund municipal government, including education.  Do legislators have an actual or apparent conflict of interest because voting for increased municipal aid could lower their own property taxes?  To answer that question in the affirmative would disqualify all legislators from ever voting on municipal aid.  I think most reasonable people would agree that the connection between such a vote and a legislator’s wallet is too indirect in this example to constitute even an appearance of a conflict.

Now suppose that a legislator works for one of our insurance companies and has to vote on a bill that targets insurance companies for higher taxes.  Such a tax could result in lower profits for insurance companies, which would pressure the companies to cut costs, including salaries, which could adversely impact our hypothetical legislator.

In this example, the relationship between the legislator’s vote and his/her pocketbook is clearer, but still indirect and attenuated.  Under our state ethics laws, I do not believe that this situation would qualify as a conflict of interest.  But the appearance issue is palpable.  Yet, this kind of appearance problem frequently exists in a part-time, citizen legislature.  If you want to get rid of this kind of problem, you either need a full-time legislature or a rule that forbids a legislator from voting on any bill that directly affects the industry he or she works in.  That is a debate worth having, but not in the limited context of a specific bill about who can or cannot chair Appropriations.

What if the legislature is considering a tort-reform bill, which would put a cap on non-economic damages in personal injury cases?  Such legislation is typically opposed by the plaintiffs’ trial bar.  Many of our state legislators are lawyers and work for law firms that generate revenues from such legal work.  Should those legislators be barred from voting on the bill?  Again, the appearance of a conflict is palpable.  To eliminate this type of conflict, however, see the last two sentences of the preceding paragraph.

Now back to Sen. Bye’s situation.  As I understand the facts, the state money that Auerfarm has received in past years (roughly $30,000/year) has come from the state Dept. of Agriculture.  In her capacity as co-chair of Appropriations, however, she does not control how that department doles out money to organizations like Auerfarm.  In my opinion, the connection between her position and Dept. of Agriculture funding for Auerfarm is too attenuated to constitute an actual or apparent conflict of interest.

Of course, there are situations where an actual or apparent conflict could arise, which would require Sen. Bye to recuse herself from a vote; for example, if a hypothetical state budget bill had a specific line item in it for Auerfarm, particularly one that significantly increased the amount of money Auerfarm received from the state annually.  A conflict would also exist if Sen. Bye used her position as co-chair of Appropriations to pressure the Dept. of Agriculture to fund Auerfarm (e.g., “If you don’t fund Auerfarms, I’m going to use my position to reduce funding to your agency.”).  But there is not a scintilla of evidence that Sen. Bye has abused her position that way.  If such evidence comes to light, I’ll be writing on this blog that she needs to go.

The question, then, is this: Is the mere possibility that a public official could misuse or abuse her authority as chair of a committee like Appropriations for personal gain sufficient reason to disqualify the official from holding that position?  I think not, unless we want to presume that all of our elected officials are guilty until proven innocent.  I’m growing more cynical with age, but I’m not at that point–yet.

[Disclosure: Sen. Bye is my state senator.  I have not discussed the subject matter of this post with her or any other person acting on her behalf.]

Dan Klau is an attorney with McElroy, Deutsch, Mulvaney & Carpenter, LLP; the immediate Past President of the Connecticut Foundation for Open Government and is a member of the board of the Connecticut Council on Freedom of Information.

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