Ethics: Advisory Opinion No. 1995-17

Advisory Opinion No. 1995-17
Advisory Opinion No. 1995-17

 Limitations On Outside Employment Of Claims Commissioner

The petitioner, a partner in a law firm, has been appointed by the Governor to the position of Claims Commissioner, pursuant to Conn. Gen. Stat. 4-142a, and is therefore a public official within the meaning of Conn. Gen. Stat. 1-79(k).  The petitioner has asked how his appointment will affect his ability to maintain an on-going law practice, with specific reference to the representation of private clients in matters involving the Office of the Attorney General, the Department of Correction, the Department of Administrative Services, the Unemployment Compensation Commission, the Workers’ Compensation Commission, the State Labor Board and the State Board of Mediation and Arbitration.

Under common law principles, the State of Connecticut is immune from suit for liability without its consent, and no state officer or employee is personally liable for damage or injury caused within the scope of his or her employment absent wanton, reckless or malicious behavior.  Administrative procedures have been developed for the resolution of certain claims, such as unemployment benefits, and in other cases suit has been authorized by statute.  A claims commission was established for the adjudication of those petitions for money damages, or for permission to sue the state, where a procedure for the resolution of the claim does not otherwise exist.  Hirschfeld v. Commission on Claims, 172 Conn. 603, 604 (1977), Conn. Const. Art. XI, Sec. 4, Conn. Gen. Stat. 4-141-165.

Among the petitions within the Claims Commissioner’s jurisdiction are claims of injuries brought by inmates against the Department of Correction, claims against state officers and employees arising from the discharge of their duties, and claims of damage or injury caused by the defective condition of state-owned property.  The definition of “state officers and employees” includes “every person elected or appointed to or employed in any office, position or post in the state government, whatever his title, classification or function and whether he serves with or without remuneration or compensation, including judges of probate courts and employees of such courts.”  Conn. Gen. Stat. 4-141, 146, 165, 165b.  When necessary to protect the state’s interest, the Office of the Attorney General will represent the state agency or department involved in the claim, otherwise the agency or department represents itself.  Conn. Gen. Stat. 4-149.  It is within the Claims Commissioner’s discretion to authorize suit against the State, in which event the State waives its sovereign immunity and the suit is defended by the Office of the Attorney General.  Conn. Gen. Stat. 4-160.

Where a claim is for $1,000 or less, the Claims Commissioner may waive a hearing and issue a ruling based upon affidavits of the parties.  Conn. Gen. Stat. 4-151a.  Where a hearing is held, the Claims Commissioner has broad authority to issue subpoenas, call and examine witnesses and require information which has not been offered by either party.  In the conduct of such hearings the claims commissioner is bound only by such rules of evidence as he or she may establish.  Conn. Gen. Stat. 4-151.  The Claims Commissioner may approve immediate payment of claims up to $7,500 but awards in excess of $7,500 must be submitted, in the form of a recommendation for payment, to the General Assembly.  Conn. Gen. Stat. 4-158(a), 159.

Pursuant to Conn. Gen. Stat. 1-84(d), neither the petitioner nor any member or employee of his law firm may represent another person, for compensation, before the following state agencies:  The banking department, the claims commissioner, the commission on hospitals and health care, the insurance department, the department of liquor control, the department of motor vehicles, the state insurance purchasing board, the department of environmental protection, the department of public utility control, the Connecticut siting council, the division of special revenue within the department of revenue services and the Connecticut real estate commission.

Although the state agencies which are the subject of the petitioner’s inquiry are not among the “prohibited agencies” of 1-84(d), this fact is not dispositive of the question at hand.  Conn. Gen. Stat. 1-84(b), which is designed to prevent conflicts of interest with state responsibilities, prohibits the acceptance of other employment which will either impair a public official’s independence of judgment with respect to his or her state duties or which will result in the disclosure of confidential information acquired in the course of his or her state service.  Under Conn. Gen. Stat. 1-84(c), a public official may not use his or her public position or confidential information acquired as a result of such position to obtain financial gain for himself or herself or for a business with which he or she is associated.

The petitioner’s representation of private clients in matters involving the state agencies identified in his inquiry, in a worst-case scenario, would place him opposite an Assistant Attorney General who represents the State in a claim pending before the office of claims commissioner, or before a state agency, employee or officer defending such a claim.  As the State’s only Claims Commissioner, it would not be possible for the petitioner to assign the pending claim to a colleague for disposition.  Representation of a private client under such circumstances would be an impermissible impairment of the petitioner’s judgment, in violation of Conn. Gen. Stat. 1-84(b).  At its most benign, the representation of private clients in matters involving any of the state agencies in question would inevitably place the petitioner, as either an adversary or supplicant, before persons or entities whose defense of claims he might later be called upon to evaluate as claims commissioner.  It would be unrealistic to expect state agency personnel who deal with the petitioner under such circumstances to separate the private practitioner from the public service adjudicator, thereby offering him a perhaps-inadvertent, but nevertheless prohibited, advantage, in violation of Conn. Gen. Stat. 1-84(c).  See State Ethics Commission Advisory Opinion No. 93-1, 54 Conn. L.J. No. 37, p. 1D (March 16, 1993) (Executive Director Of Agency Charged With Investigating Complaints Against Judges May Not Maintain Private Law Practice As A Litigation Attorney).

It is the State Ethics Commission’s conclusion that the petitioner, as the sole adjudicator of a broad spectrum of claims which may be brought against state agencies and state personnel, may not represent a private client before any of the state agencies which are the subject of his inquiry.  This limitation, unlike the restrictions of 1-84(d), will not apply to any other partner or employee of his law firm.  Also, assuming that no specific conflicts with the Code of Ethics arise, the petitioner must not allow the permissible aspects of his private law practice to interfere with his ability to devote to his state responsibilities the requisite time and energy; otherwise the Commission would view the private work as an impairment of his independent of judgment with respect to his state duties, in violation of Conn. Gen. Stat. 1-84(b).

By order of the Commission,

David T. Nassef

Content Last Modified on 9/7/2005 8:01:11 AM