March 18, 2014 Craig S. Trujillo, CPA Deputy Chief Auditor City of Hartford Internal Audit Commission 260 Constitution Plaza Hartford, CT 06103 Dear Mr. Trujillo, (On behalf of the Intemal Audit Commission, you have asked for my opinion on two matters. The first refers to a memorandum you wrote in which you stated: With regards to “Interim” positions, Municipal Code limits an “Interim” position term to six months which cannot be renewed. The current employee in the Director of Public Works position is classified as “Interim” whose term expires in mid-March 2014 and the COO “Interim” status expires mid-April 2014, You ask for ‘a legal opinion as to [my] interpretation of the municipal code provision in this matter.” | believe that your memorandum refers to Section 2-370(C) of the Municipal Code, which provides as follows (emphasis added): When a position, or a Temporary Position, as defined in this Article is established and cannot be filled by the assignment of an employee or from an existing employment list, the Director may authorize the appointment of a Temporary Employee. Such Temporary Employee shall not be considered eligible for any of the benefits provided for in this Article for other employees in the Classified Service. Appointments to Temporary positions will expire automatically at the end of six (6) months and shall not be subject to renewal. | do not know what the question is; this provision is perfectly clear and in my view is not ‘subject to any construction other than what it so clearly says — an appointment to a temporary position expires in six months and cannot be renewed. (On the other hand, | feel compelled to note that this provision has nothing to do with the two positions mentioned in your memorandum. Section 2-370(C), like Sections 2-370(A) and (B) is addressed to positions in the classified service. Both the positions of Director of Public Works, a Department Head (Code § 2-87), and Chief Operating Officer are defined asCraig S. Trujillo, CPA Page 2 of 4 unclassified positions and are subject to confirmation by the Council. Charter, ch. Vill, '§5(e)(3)(ii), (v); ch. V §2 (d). Temporary appointments of department heads and the COO are governed by ch. IV, § 2(d) of the Charter, which allows the Mayor to designate a person to hold a position subject to confirmation in an acting capacity pending the selection of a nominee, “but no person may hold such a position for more than six (6) months without being submitted for confirmation by the Council.” Again, the meaning of the language is perfectly clear. Your second question notes that the Mayor "was photographed at Home Depot in West Hartford on a recent Saturday with his [husband] putting packages into his City issued SUV. This appears to be a personal use of the vehicle.” You ask for “a legal opinion on the Ethics Code provision of personal use of City Vehicles as it applies to the Mayor and does his 24/7 on call status as Mayor give him the right to use the vehicle for personal use?" Itis my legal opinion that this question falls squarely within the jurisdiction of the Ethics Commission, not the Internal Audit Commission, and I therefore decline to give a definitive answer to your question. The ordinance establishing the Ethics Commission clearly assigns to that Commission the tasks of interpreting and enforcing the City’s Code of Ethics: (C) Duties. The duties of {the ethics] commission are: (1) To investigate and hear any reported allegations, make findings, and to take any appropriate disciplinary or enforcement actions pursuant to this code of ethics; (2) To render advice, which may include written advisory opinions, to the City corporation counsel, or any other public employee or official on this code of ethics, Code, § 2-908. The Internal Audit Commission, on the other hand, is not charged with construing the ‘ethics code. Rather, its role is to “conduct independent examinations and evaluations of city financial activities to assure the integrity, efficiency, and efficacy of the government of the city, including the board of education.” Code, § 2-41(b)." If, in the course of such “examinations and evaluations” the Audit Commission identifies a matter that appears to fall within the jurisdiction "The Charter states that the Internal Audit Commission ‘shall have authority to examine into all matters relating to the integrity, efficiency and efficacy of the government of the City, including the Board of Education.” This language appears to be broader than the language of the Municipal Code, but it does not put the interpretation and enforcement of the Code of Ethics into the purview of the Internal Audit Commission and there is, therefore, no need to consider the significance of the difference in language.Craig S. Trujillo, CPA Page 3 of 4 of the Ethics Commission it, ike anyone else, may refer that matter to the Ethics Commission, and in the case of a possible fraud, it is charged by ordinance to do so” ‘The question you posed is a policy decision for the Ethics Commission, not a question to be answered by a legal opinion. There are, however, considerations that might inform that policy conclusion, and that the Internal Audit Commission might want to consider if it determines whether to make a referral to the Ethics Commission. The following are among those considerations: 1. The answer to the specific question you posed may be affected by whether the Mayor's official vehicle is equipped with any special communication or other devices that further the Mayor's ability to fulfill his role in the event that he is needed in an ‘emergency. 2. The City’s ethics ordinance was amended in 2011 to adopt what appears to be a de imis exception to the prohibition against personal use of City equipment. Prior to the amendment, section 2-902(B) provided: Use of any and all City equipment or supplies to which an individual who is an officer, official or employee has access in the course of the individual's City duties must be restricted only to those duties. The individual shall not employ such equipment for personal use or for any other purposes except those related directly to the individual's City duties. With the adoption on September 12, 2011, of ordinance no. 43-11, that provision now reads as follows (emphasis added): Personal use of any and all City equipment or supplies to which an individual who is an an officer, official or employee has access in the course of the individual's City duties must not interfere with the individual's City responsibilities and must be in accordance with the City's Information Technology Resources If, after investigation of the alleged fraud, and after seeking advice from the Corporation Counsel's Office as necessary, the Internal Audit Commission determines that the fraudulent conduct of the City employee, official, officer, board, commission or agency member constitutes an ethics violation pursuant to Section 2-900, et seq. of the City of Hartford Ethics Code, it shall (i) File an ethics complaint with the City of Hartford Ethics Commission ("Ethics Commission"), or (ii) Refer the matter to the Ethics Commission, which may then initiate its own ethics complaint in compliance with its rules of procedure. Code § 2-913(c)(3). The essence of fraud is deceit, which does not appear to be involved in the particular situation about which you inquired.Craig S. Trujillo, CPA Page 4of 4 Policy and Social Media Policy. An individual shall not use City equipment for hi ‘own personal or financial gain, as defined herein, or to benefit or cause injury to a third party, nor shall the individual's use of equipment result in a financial or other loss or injury to the City. Financial gain is defined as “money, thing of value or other pecuniary benefit received worth in excess of fifty dollars ($50.00).” Code § 2-901(H). In the absence of “financial gain as defined in” the Ethics Code, there is no violation arising out of the Mayor’s use of the vehicle.® 3, The facts of the specific use may matter. If, for example, the Mayor stopped at Home Depot on his way to or from a City-related event, as is suggested to this ‘observer by the Mayor's wearing of a jacket as shown in the picture to which your memorandum refers, there may have been no cost whatsoever to the City and the stop might be considered not to have transformed the Mayor's use of the vehicle into a personal use. ‘Again, | reiterate that the items discussed above are a non-exclusive set of considerations to be resolved by the Ethics Commission that should be considered by the Internal Audit Commission only as factors affecting any decision it makes as to whether to refer this matter to the Ethics Commission. Legislative and Legal Advisor to the City Council ® | am not suggesting that the proper measure of this issue is restricted to the particular incident.