Advisory Opinion No. 1995-17
Under common law principles, the State of Among the petitions within the Claims Commissioners
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 states
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 Commissioners
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.
Although the state agencies which are the subject of the
petitioners 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 officials
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 petitioners 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 States 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 petitioners 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 It is the State Ethics Commissions 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
Chairperson