Advisory Opinion No. 1994-20
Former Department Of Mental Health Employee Testifying
In Suit Against
Department Of Correction
In 1992 Dr. Robert Phillips, then the Director of Forensic
Services of the Department of Mental Health and the Chief Executive Officer of
Whiting Forensic Institute, participated personally and substantially in a
study of mental health services at DOC facilities, including BCC. The report thereon was entitled “State of
In proceedings before the State of Connecticut Freedom of
Information Commission on the subject of whether the 1992 draft report should
be made public, it was determined that the report “set [] forth legal and
mental health standards of care, compile[d] data with respect to mental health
services provided at the surveyed facilities in the state, compare[d] the
actual services provided against the applicable legal and mental health
standards as cited in the Report, and . . . use[d] that analysis to make
recommendations for the development or improvement of mental health programs
and correctional facilities.” Final Decision, FIC Docket No. 92-319, paragraph 13 (
In June, 1994 Dr. Phillips toured BCC in anticipation of
offering his opinion to inmate plaintiffs in their lawsuit against the DOC “as
to whether the psychiatric standards of practice and psychiatric services now
available to inmates at [BCC] are at present consistent with the standards of
practice for mental health services in correctional settings.”
Conn. Gen. Stat. §1-84a prohibits the disclosure or use of
confidential information, acquired in state service, for the financial gain of
oneself or another person. This is a
life-long prohibition, and permanently bars Dr. Phillips from using such
confidential information in connection with compensated testimony, consulting
services, or other remunerated activity.
The term “confidential information” refers to information, whether
recorded or not, which is “not generally available or released to the public”
by virtue of state or federal law. State Ethics Commission Advisory Opinion No. 90-7, 51
The Commission has previously stated that a former state
employee may not act as a consultant to a litigant, other than the State, if
confidential information gained through State service could be of use in
relation to the pending suit. State Ethics Commission Advisory Opinion No. 88-6, 49
In addition, Conn. Gen. Stat. §1-84b(a) prohibits a former state employee from representing anyone other than the State “concerning any particular matter (1) in which he participated personally and substantially while in state service and (2) in which the State has a substantial interest.” Under the circumstances described by the petitioner, Dr. Phillips may not offer to anyone other than the state his services as an expert witness on the subject of the report in question. Dr. Phillips states that he has declined to discuss or address the 1992 DMH draft report, or any confidential information contained therein, with the plaintiffs.
The Commission finds that Dr. Phillips’s observation and professional opinion of the quality and availability of mental health facilities at DOC institutions, including BCC, is a “particular matter” within the meaning of §1-84b(a). It is possible that the quality and availability of mental health facilities at DOC changed materially as a result of the 1992 draft report, or for another reason. Absent evidence of such change, however, the Commission further finds that Dr. Phillips’s 1994 site visit does not provide him with a clean slate upon which to etch a professional opinion which is distinguishable, for purposes of §1-84b(a), from the opinion rendered in 1992.
The plaintiffs in the lawsuit against the DOC have stated that they will elicit Dr. Phillips’s testimony regarding the 1992 draft report through the issuance of a subpoena, if necessary. If the plaintiffs take such a step Dr. Phillips will be compelled to testify, but still will be precluded, under the Code of Ethics for Public Officials, from accepting remuneration for his testimony or advice on the subject of the draft, any confidential information or any “particular matter,” as that term is used in Conn. Gen. Stat. §1-84b(a).
By order of the Commission,
R.E. VanNorstrand
Chairperson