Ethics: Advisory Opinion No. 1997-3

Advisory Opinion No. 1997-3
Advisory Opinion No. 1997-3

Application Of Conn. Gen. Stat. 1-84b(b) To Appearances Before
Special Education Due Process Hearing Officers

James F. Papillo, a former employee of the State Department of Education, has asked whether Conn. Gen. Stat. 1-84b(b) bars him from representing clients before special education due process hearing officers for a year after his separation from state service. That section prohibits a former state employee, for a period of one year after leaving state service, from representing anyone, other than the state, for compensation, before his former agency concerning any matter in which the state has a substantial interest.

The answer to Attorney Papillo’s question depends on the answer to two other preliminary questions: (1) is an appearance before a special education due process hearing officer in effect an appearance before the Department of Education and (2) is such a hearing a matter in which the state has a substantial interest? Turning to the latter question first, some background information is necessary. The State of Connecticut participates in the Federal Special Education Entitlement Grant Program. Federal law mandates that the opportunity for special education due process administrative hearings be provided. Under Conn. Gen. Stat. 10-76h, the state has set up a single-tier system. A parent of a special education child who is not satisfied with the course of education set up by a local or regional school district may apply to that district for a due process hearing. The local district notifies the state Department of Education, which assigns the matter to a hearing officer off an alphabetically-arranged rotating list. The hearing officer, who, by law, is not an employee of the state Department of Education (Conn. Gen. Stat. 10-76h(c)(2)), hears the matter and issues a ruling which, if appealed, is usually appealed to federal court. If the hearing officer has legal questions during the hearing, he or she may contact the Attorney General’s office. The Department of Education does not participate in the hearing, and usually does not participate in any appeal unless the appeal raises systemic issues (e.g., fairness of hearing officers). The Department of Education does recruit, train and evaluate the hearing officers, who, although not Department employees, are paid by the Department.

Based on the fact that the Department of Education does not otherwise participate in the due process hearing, Attorney Papillo makes a reasonable argument that the state does not have a substantial interest in the matter. It is true that the state does not usually become involved in the hearing itself: however, it does have a substantial interest in the overall hearing process. Not only does that process concern the educational rights of the state’s citizens, but the state runs the program and receives federal grant money as a result. Therefore, the "substantial interest" requirement of Conn. Gen. Stat. 1-84b(b) is met.

The one remaining question is whether representation of a client at a due process hearing equals representation before the state Department of Education. On balance, the Commission decides that this is not representation before the Department and is, therefore, not prohibited in Attorney Papillo’s case. The Department has no substantive involvement in the hearing process. The hearing officer’s decision is in no way subject to department review. Even when the Department evaluates the hearing officers’ performance, it is as to form (i.e, are they courteous to the parties, do they render their decisions in a timely fashion) and not as to the substance of the rulings. Although the hearing officers are paid by the Department, they are required by law not to be Department employees. They do not rely on the Department for advice or counsel during the hearings. Therefore, within a year after leaving state service, Attorney Papillo may represent parties before such a hearing officer. Of course, any representation before the Department of Education would continue to be prohibited. "Representation" has been very broadly defined to include making phone calls, signing letters, and attending meetings with Department employees, as a paid representative of someone other than the state.

This ruling is distinguishable from two other recent Commission decisions, Advisory Opinion 96-17 and Advisory Opinion 96-18. In the former, the Commission ruled that the Underground Storage Tank Petroleum Cleanup Account Review Board was part of the Department of Environmental Protection for purposes of applying the post-state employment rules. That opinion was based in part on the fact that the Board’s employees are employees of the Department; that fact is not present here. In the latter opinion, the Commission held that, for a year after he or she leaves state service, a former state employee may not appear before a legislative task force on which a colleague from his former agency sits as a member. That opinion is distinguishable from this ruling in that the task force member is representing the agency: here, the due process hearing officer is not representing the Department of Education.

Finally, under Conn. Gen. Stat. 1-84b(a), Attorney Papillo may not represent anyone at any time regarding any matter in which he was personally and substantially involved while in state service and in which the state has a substantial interest. For example, in his letter, Attorney Papillo indicates that, in his state role, he sometimes served as a mediator between school districts and parents of students with disabilities.

Under this section, he should not represent any party, other than the state, with regard to a dispute for which he served as mediator.

By order of the Commission,

Maurice FitzMaurice

Content Last Modified on 9/7/2005 8:02:03 AM