Ethics: Advisory Opinion No. 1994-2

Advisory Opinion No. 1994-2
Advisory Opinion No. 1994-2

Application Of Code Of Ethics To Court Reporters

Mr. Theodore Kamasinski has asked for a declaratory ruling on the application of the open and public contracting process requirements of the Code of Ethics, Conn. Gen. Stat. 1-84(i), to court reporters and monitors who contract with state agencies to supply transcripts.

Court reports and court monitors (denoted herein as “court reporters” for brevity’s sake) are state employees whose actions are subject to the Code of Ethics for Public Officials.  See Conn. Gen. Stat. 1-79(m).  Court reporters receive a salary or per diem payments from the State of Connecticut.  See Conn. Gen. Stat. 51-63(b).  In addition, they also receive separate remuneration from parties who order transcripts of the proceedings that the court reporters have recorded.  See Conn. Gen. Stat. 51-63(c).

Under Conn. Gen. Stat. 1-84(i), no state employee may enter into a contract with the state valued at one hundred dollars or more, other than a contract of employment as a state employee or pursuant to a court appointment, unless the contract has been awarded through an open and public process, including prior public offer and subsequent public disclosure of all proposals considered and the contract awarded.  Thus, a preliminary issue arising from Mr. Kamasinski’s question is whether the court reporters’ preparation of transcripts is part of their responsibilities as state employees, or whether such activity is outside employment subject to the constraints of 1-84(i) if the request for a transcript comes from a state agency.

The Judicial Department, through its attorney Martin Libbin, indicates that the preparation of transcripts is considered part of court reporters’ “sworn judicial duties,” and that, therefore, the contracts implementing that preparation should never be subject to 1-84(i).  Mr. Kamasinski argues that while the preparation of transcripts may be their responsibility as state employees, their contracts for payment are private and should be subject to 1-84(i).  He cites several letters from the Judicial Department and one informal letter from an assistant attorney general in support of his position, including a September 20, 1993 letter from Attorney Libbin which states in part that “the Court Operations Division does not have the authority to order the return of funds [paid to a court reporter], although it can discipline employees in accordance with the collective bargaining agreement.”

The preparation of transcripts is clearly part of the court reporter’s duties as a state employee.  As Mr. Kamasinski correctly points out, it is equally clear that the payment for such services comes from sources other than the Judicial Department, either from private parties or from an interested state agency in need of a transcript.  What is not so clear is how this unusual form of compensation affects the application of 1-84(i).  It is the opinion of the State Ethics Commission that, despite the clouding effect of this method of compensation, the contracts made between court reporters and those ordering transcripts are not subject to the open and public process requirements of 1-84(i), because in preparing those transcripts, court reporters are performing work required of them in their state jobs.  The Commission also notes that the possibility of contracting with someone other than the court reporters to perform the transcribing work raises reasonable concerns regarding the practical administration of such an open process.

Mr. Kamasinski’s question raises a second area of concern, however.  In his May 17, 1993 letter requesting his declaratory ruling, Mr. Kamasinski claims that court reporters have prepared transcripts and charged a fee greater than that allowed by statute.  In effect, Mr. Kamasinski seeks guidance on whether such an enhanced fee would violate the Code of Ethics.

Conn. Gen. Stat. 1-84(c) prohibits any state employee from using his or her public office or position to obtain personal financial gain.  In Conn. Gen. Stat. 51-63, the legislature has set out the fees which a court reporter may charge for the preparation of a transcript.  The Ethics Commission has consistently held that state employees may not collect a fee beyond that which is allowed to them by statute or contract.  See State Ethics Commission Advisory Opinion No. 89-20, 51 Conn. L.J. NO. 7, p. 3C, (8/15/89).  The Judicial Department itself has apparently sent out more than one memorandum to the court reporters reminding them that “the statutory mandates of the State of Connecticut must be complied with and failure to do so is grounds for serious discipline.”  See Letter from Frank A. Cassello, Deputy Director of Administration, Court Operations, to official court reporters, November 6, 1992.  Thus, if a court reporter charges more than the statutory rate for the preparation of a transcript, he or she is using his or her state position for inappropriate financial gain in contravention of Conn. Gen. Stat. 1-84(c).

For example, it is apparent from the materials received from both Mr. Kamasinski and from the Judicial Department that many, if not all, court reporters have consistently been charging fees in excess of the statutory rate for transcripts which they have deemed to be “expedited.”  It is clear that the concept of “expedited” transcripts has been acknowledged by the State and specifically by the Judicial Department, both in the actions of state personnel (including judges) in ordering and paying for expedited transcripts, and in at least one memorandum to the court reporters from the Executive Committee of the Judges of the Superior Court which includes among its list of “Transcript Production Priorities” any “expedited copy in non appeals, if authorized by court order.”  See Memorandum to All Court Reporters from Dexter B. Lyman, Supervisor, dated February 17, 1982.

What remains unclear is the legal justification for the rate charged by court reporters for these expedited transcripts.  The Judicial Department has suggested that the justification for such an expedited fee appears to be the language of 51-63, which sets the fees for transcripts and requires that the copies of the transcript “shall be furnished within a reasonable time.”  Conn. Gen. Stat. 51-63(d).  Accordingly, that agency has apparently allowed court reporters to charge a fee in excess of the statutory rate when the transcript is prepared in less than “a reasonable time.”  Although the Commission recognizes that a different rate for expedited work may very well be appropriate, the mere fact that the Judicial Department has “allowed” an expedited rate, without statutory authority, is not sufficient to prevent this Commission from considering such a fee an unacceptable use of office by the court reporters under Conn. Gen. Stat. 1-84(c).  Without legal authority defining the term “expedited” and setting the rates for expedited work, the court reporters may not charge more than the statute setting their rates allows.

The effect of this ruling is stayed until July 1, 1994.

By order of the Commission,

Christopher T. Donohue

Content Last Modified on 9/7/2005 8:00:43 AM