Merchant v. State Ethics Commission

• Court: Connecticut Court of Appeals
• Writing for the Court: HENNESSY, J.
• Citation: Merchant v. State Ethics Commission, 53 Conn. App. 808, 733 A.2d 287 (Conn. App. 1999)
• Decision Date: 22 June 1999
• Docket Number: (AC 17619)
• Parties: JOHN F. MERCHANT v. STATE ETHICS COMMISSION

53 Conn. App. 808

733 A.2d 287

JOHN F. MERCHANT v. STATE ETHICS COMMISSION

(AC 17619)

Appellate Court of Connecticut.

Argued December 7, 1998.

Officially released June 22, 1999.

Foti, Hennessy and Daly, JS. John F. Merchant, pro se, the appellant (plaintiff), with whom was Daniel E. Brennan, Jr.

Gregory T. D'Auria, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Carolyn K. Querijero, assistant attorney general, for the appellee (defendant).

Opinion

HENNESSY, J.

The plaintiff, John F. Merchant, appeals from the judgment of the Superior Court dismissing his appeal from the decision of the defendant, the state ethics commission (commission). The commission determined that the plaintiff, who was employed by the state of Connecticut as consumer counsel for the office of consumer counsel, violated the Code of Ethics for Public Officials (ethics code), General Statutes § 1-79 et seq.,¹ and the plaintiff appealed to the Superior Court. The plaintiff claims that the Superior Court improperly determined that (1) the commission had jurisdiction to hear this matter pursuant to the ethics code, (2) the commission provided timely notice of the filing of the complaint and a copy of the complaint to the plaintiff as required by the ethics code, (3) the unauthorized disclosure of the existence of a complaint against the plaintiff did not divest the commission of jurisdiction, (4) the commission was required to disclose its files where there was no finding of probable cause, (5) the Handbook for Appointed Officials was admissible before or enforceable by the commission, (6) the decision of the commission was supported by substantial evidence and (7) the multiplicity of procedural errors did not constitute a denial of procedural due process in violation of the United States and Connecticut constitutions. We affirm the judgment of the Superior Court.

The following facts and procedural history are relevant to this appeal. While the plaintiff was employed in the position of consumer counsel, a staff attorney filed a complaint with the commission alleging five separate violations of the ethics code by the plaintiff. After a preliminary hearing, the commission found probable cause to believe that the plaintiff had violated General Statutes § 1-84 (c) by improperly certifying his state attendance records to include hours when he was, in fact, out of the state attending the Masters and Walker Cup golf tournaments in his capacity as a member of the United States Golf Association's executive committee.²

Thereafter, as mandated by General Statutes § 1-82 (b),³ the commission held a violation hearing before a judge trial referee. The commission issued its decision in which it determined that the plaintiff had violated § 1-84 (c) as alleged. The commission concluded that the plaintiff had used his office for financial gain when he unilaterally determined that it was appropriate for him to claim work time when out of the state on personal business and, thereafter, vouched for the accuracy of his time sheets as head of the office of consumer counsel. The commission also determined that vacation time that the plaintiff accrued was of specific and substantial monetary value because he would be reimbursed fully for any accrued vacation time upon leaving state service. The commission imposed a civil penalty of $1000 against the plaintiff and ordered that he cease and desist from committing this violation of the ethics code.

The plaintiff appealed from the commission's decision to the Superior Court pursuant to General Statutes §§ 4-183 and 1-87. The Superior Court dismissed his appeal and this appeal followed. Other facts and procedural history will be discussed where relevant to the issues on appeal. We note that "[j]udicial review of an administrative agency's action is governed by the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., and the scope of that review is limited.... When reviewing the trial court's decision, we seek to determine whether it comports with the [UAPA].... We look to see if the [trial] court reviewing the administrative agency acted unreasonably, illegally, or in abuse of discretion.... Dortenzio v. Freedom of Information Commission, 48 Conn. App. 424, 430, 710 A.2d 801 (1998)." (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, 51 Conn. App. 100, 104, 720 A.2d 268 (1998). "Conclusions of law reached by the administrative agency must stand if ... they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.... The court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of [its] discretion." (Citation omitted; internal quotation marks omitted.) Id.

I

The plaintiff first claims that the Superior Court improperly determined that the commission had jurisdiction to hear this matter.⁴ Specifically, the plaintiff argues that the subject matter of the complaints against him involved personnel issues, which have been delegated to the department of administrative services pursuant to the State Personnel Act, General Statutes § 5-193 et seq., and, therefore, the commission exceeded its jurisdiction in deciding this case. We are not persuaded.

The State Personnel Act sets forth its scope in General Statutes § 5-194, which provides: "This chapter shall be so construed and administered as to provide a uniform and equitable system of personnel administration of employees in the state service. Recruitment, selection, appointment, development, promotion, transfer, layoff, classification, compensation, discipline, separation and provision for the welfare of state employees shall be performed in a manner to secure and retain well qualified employees to carry out state programs effectively and efficiently and to provide reasonable stability of employment in the state service." (Emphasis added.) We agree that the State Personnel Act sets forth a system of personnel administration of employees in state service under the authority of the commissioner of administrative services.

In this case, however, there was an allegation that the plaintiff used his public office for personal financial gain. The plaintiff did not cite any provision of the State Personnel Act that indicates that the commissioner of administrative services has the authority to discipline a state employee for this type of act. Even if we assume that the State Personnel Act does give the commissioner of administrative services the authority to discipline a state employee for this type of act, the plaintiff has not cited any language in the act indicating that the legislature intended that the grant of authority is exclusive to the commissioner of administrative services.

Section 1-84 (c) of the ethics code, on the other hand, provides in relevant part that "no public official or state employee shall use his public office or position ... to obtain financial gain for himself...." The plaintiff's alleged activity clearly falls within the jurisdiction of the commission under the ethics code. "Absent a statutory provision designating which commission is to have overriding responsibility ... the fact that the legislature has given responsibility to more than one agency suggests that each must exercise its own authority, using its standards and procedures, regardless of what the other agencies do under their delegation of power from the state." (Internal quotation marks omitted.) Smith v. Zoning Board of Appeals, 227 Conn. 71, 96, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994). Section 1-82 of the ethics code provides the procedure to be used when a complaint has been filed against a public official alleging that the public official engaged in any of the prohibited activities. The commission used that procedure in addressing the allegations against the plaintiff.

The plaintiff has not persuaded this court that the department of administrative services has exclusive jurisdiction to address the violations that are the subject of the complaint. Accordingly, we conclude that the Superior Court did not abuse its discretion in concluding that the commission had jurisdiction to hear the matter.

II

The plaintiff next claims that the Superior Court improperly determined that the commission complied with the notice mandates of the ethics code and therefore had jurisdiction to hear the matter. Specifically, the plaintiff argues that the commission did not provide him with notice of the filing of a complaint against him and did not provide him with a copy of the complaint within five days of the filing of the complaint with the commission as required by General Statutes § 1-82 (a) (1).⁵ The commission responds that General Statutes (Rev. to 1993) § 1-82 (a) was in effect when the complaint was filed and that, under that version of the statute, its notice was proper because the five day notice was triggered by the sufficiency of evidence hearing and not by the filing of the complaint. We agree with the commission.

General Statutes (Rev. to 1993) § 1-82 (a) provides in relevant part: "Upon the complaint of any person... the commission shall, after meeting and determining that there is sufficient evidence to warrant such inquiry, investigate any alleged violation of this part.... The commission shall not later than five days after so meeting notify by registered or certified mail any respondent against whom such complaint is filed and a copy of such complaint shall accompany such notice...."

The Superior Court found and the record reflects the following facts. The complaint against the plaintiff was filed and received by the commission on June 15, 1994. The commission conducted a sufficiency of the evidence hearing with regard to the...