Advisory Opinion No. 1997-9
Practicing Law Before The CHRO
The State Ethics Commission has been asked whether it is permissible under The Code Of Ethics For Public Officials, Conn. Gen. Stat. Chapter 10, Part I, for Commission on Human Rights and Opportunities (CHRO) hearing officers to engage in the private practice of law before the CHRO in matters presided over by their fellow hearing officers.
The CHRO has been established by statute to administer and enforce the State’s anti-discrimination laws (including provisions banning discrimination in employment, public accommodations, housing, credit practices and state contracts). Conn. Gen. Stat. Chapter 814c. In order to conduct its enforcement proceedings, CHRO has been provided with twenty-five hearing officers. Conn. Gen. Stat. § 46a-57(a). These hearing officers, to be appointed by the Governor, must be attorneys with at least five years of practice in Connecticut, Id. Each hearing officer receives one hundred and twenty-five dollars per day for each day on which he or she conducts hearings; a prorated portion of this per diem for any part of a day on which the officer prepares findings, orders or rulings; plus reasonable expenses. Id. at (b). Hearing officers are authorized to issue findings at the close of a hearing and may order various remedies and sanctions; including hiring, reinstatement or back pay in employment discrimination cases; and the payment of damages in housing discrimination or credit discrimination cases. Conn. Gen. Stat. § 46a-86. Hearing officers are also authorized to issue subpoenas and to determine reasonable fees to be paid to expert witnesses. Conn. Gen. Stat. § 46a-57(c).
Given their manner of appointment and the authority that they exercise, CHRO hearing officers are "Public Officials" as that term is defined in the Ethics Code and are, therefore, subject to the requirements of the Code. Conn. Gen. Stat. § 1-79(k).
The State Ethics Commission has previously considered an analogous matter which provides precedent for the question under review. State Ethics Commission Advisory Opinion No. 94-16, 56 Conn. L. J. No. 11, p. 2B ( 9/13/94) . In A.O. No. 94-16, the Commission ruled on the issue of whether a member of the Connecticut Medical Examiners Board (CMEB) could represent physicians during the course of investigations conducted by the Public Health Hearing Office of the Department of Public Health and Addictions Services. These investigations could lead to hearings before the CMEB, and were conducted by agency employees who also provided staff services to the Board and acted as prosecutors in any matters reaching the CMEB hearing stage. Id. The Board Member stated that, should one of his cases reach the CMEB, he would refrain from appearing before that body or otherwise participating in the matter. Id. The State Ethics Commission held that such recusal was insufficient, and that the outside employment at issue was impermissible under the Code. Id. Specifically, the Commission found that the proposed work was barred by Conn. Gen. Stat. § 1-84(b) which prohibits outside employment which would impair independence of judgment with regard to official duties. (The Board member’s "effectiveness, if not his impartiality, as a CMEB member would most certainly be jeopardized by his acceptance of private casework subject to CMEB’s jurisdiction.") Id. Additionally, the Commission found that the outside employment would violate the Conn. Gen. Stat. § 1-84(c) ban on use of public position for private financial gain. (The agency attorneys would be placed in the untenable position of negotiating cases with the Board Member in his private capacity, and then appearing before him in other matters, on which he sits in his public official decision-making capacity. Furthermore, the Board Member’s public position inevitably, and inappropriately, lends credence to his private practice "which does not arise from his expertise alone, but rather results from this use of office, however inadvertent".) Id.
While the outside employment considered in A.O. No. 94-16 was unquestionably impermissible under the Ethics Code, the conduct currently under review presents an even clearer and more egregious conflict of interests. In this case, the public official wishes not just to undertake employment incident to a preliminary investigation, but seeks to appear in agency hearings presided over by his or her fellow hearing officers. Under the circumstances, violations of Conn. Gen. Stat. § § 1-84(b) and (c) are inevitable and unavoidable. First, the hearing officer is placed in the ethically unacceptable position of rendering decisions which may well serve as precedent and thereby directly affect the outcome in a parallel or analogous case in which the individual is acting as a private attorney. Secondly, the hearing officer is in the obviously untenable position of ruling on cases where the decision may directly affect the success, and quite possibly the compensation, of a fellow hearing officer/attorney; a fellow hearing officer who may well have the opportunity to similarly affect his colleague’s casework in the near future. Finally, the hearing officer/attorney’s private reputation and practice cannot help but be improperly benefited by his public authority over his area of private employment.
In conclusion, the Commission notes that it is a fundamental tenet of Judicial Ethics that a judge should not engage in the practice of law. Code of Judicial Conduct, Canon 5F. Connecticut Rules of Court (1996). It is no less fundamental, under The Code Of Ethics For Public Officials, that a public official serving in a judicial capacity at a state agency should not engage in the practice of law before that agency.
By order of the Commission,
Maurice FitzMaurice
Chairperson