Advisory Opinion No. 2003-19
Application Of
Conn. Gen. Stat. §1-84b(c) To The Commissioner Of The
Office Of
Health Care Access
The
pertinent post-state employment provision, Conn. Gen. Stat. §1-84b(c),
restricts certain senior officials and employees in the enumerated agencies
from accepting employment in the industry they regulate for one year after
state service. Pursuant to this
subsection, OHCA is one of the listed agencies; and pursuant to Commission
regulations, Commissioner Heffernan’s position is one of those designated for
restriction. See, Regulations of As a
threshold matter, it has been suggested that a dimunition
in the duties of the former Commission on Hospitals and Health Care effectively
eliminates the rationale for including OHCA under §1-84b(c). The State Ethics Commission does not dispute that
the duties of this Agency have been altered, and in certain significant aspects
diminished, since the enactment of §1-84b(c) in 1983. However, the determination of whether OHCA
should remain subject to the restriction at issue is solely within the purview
of the General Assembly and is not a matter open to consideration by the Ethics
Commission. Furthermore, the Commission
notes that, regardless of the statutory amendments to OHCA’s
authority, the Agency still retains significant regulatory power over the
State’s hospitals. See, e.g.,
Conn. Gen. Stat. §19a-639: which, in
general, sets forth OCHA’s authority to grant or deny
“certificates of need” to each health care institution or facility proposing a
capital expenditure exceeding one million dollars or the acquisition of medical
equipment requiring a capital expenditure in excess of four hundred thousand
dollars. §19a-639a at (a) The
essential issue to be decided in answering Commissioner Heffernan’s question is
whether a parent or holding company of a hospital should be encompassed by the
language “…any business subject to regulation…” by OHCA as that language is
used in §1-84b(c). In making
her request, Commissioner Heffernan suggests that the statute should not extend
to these entities, since OHCA’s authority is limited,
pursuant to Conn. Gen. Stat. §19a-630a, to oversight of business entities
licensed by the State to provide direct patient care services. The Commission takes cognizance of this
position as a legitimate potential interpretation of §1-84b(c); but, for the
reasons discussed infra, declines to adopt this view. In making its
determination, the Commission looks first to the legislative history and
purpose of the subsection in question:
the provision was proposed “…to decrease the likelihood that an official
will tailor his conduct in office to enhance his opportunities for subsequent
private employment in the same field.”
Report To The General Assembly By The Codes Of
Ethics Study Committee at p. 20 (1983).
The Commission next takes administrative notice of the reality of
business structure and organization in today’s corporate America:
i.e., that many of the banks,
insurance companies, utilities, hospitals and other business entities subject
to §1-84b(c) will be owned or held by one or more other business entities. Given this legislative purpose and given this
economic reality, allowing a public official to accept employment with a parent
or holding company of a regulated entity, with a direct financial interest in
that entity, would literally vitiate the §1-84b(c) restriction.
See, State Ethics Commission Advisory
Opinion No. 95-2, 56 CLJ 42, p. 9C ( In summary,
consistent with the underlying purpose of §1-84b(c), the Commissioner of OHCA
is prohibited, for one year after leaving her state position, from accepting
employment with a parent company or holding company of a hospital subject to
OHCA regulation. By order of the Commission, Rosemary Giuliano
Chairperson