Advisory Opinion No. 1999-10

Acceptance Of Employment As Neutral Arbitrator By Superior Court
Clerk For Housing Matters

Joseph D’Alesio, Executive Director of Operations, Connecticut Superior Court, has asked whether the acceptance of outside employment by a court employee under the following circumstances would constitute a violation of the Code of Ethics for Public Officials, Conn. Gen. Stat. Chapter 10, Part I ("the Code"). The Clerk for Housing Matters at Hartford ("Clerk") was invited to serve as a neutral arbitrator with respect to a dispute regarding a commercial lease. The arbitration panel will consist of three members, each of whom must be an attorney. One arbitrator is selected by each party (interest arbitrators) and a neutral arbitrator is selected by the two interest arbitrators. The interest arbitrators advised the Clerk that he was selected on the basis of his subject matter expertise and the fact that he is an attorney, and not because he is the Clerk of the Housing Session. The dispute to be resolved by the arbitration panel involves the type of issue that would ordinarily be heard in the Housing Session. However, in this instance there is no pending litigation due to the arbitration clause in the lease (which clause was not waived by the parties to the lease).

Both interest arbitrators are attorneys who appear in the Hartford Housing Session (one regularly and the other occasionally). Counsel for the parties to the dispute appear in the Hartford Housing Session only on rare occasions. The arbitrators’ fees will be paid by the parties, and likely will be at a rate higher than that received by the Clerk in his official state capacity.

The Clerk’s responsibilities as set forth in the Superior Court Class Code 9820 job specification, define this position as being broadly accountable for "directing the daily operations of the clerk’s office which deals with summary process, civil, small claims, and criminal cases arising from matters related to housing and for assisting pro se parties as required." Other duties include but are not limited to the direction of caseflow activities; the establishment of the daily docket of criminal, civil, summary process, and small claims matters; and the provision of information and technical assistance to members of the bar. See also Conn. Gen. Stat. §51-52(d).

While the Code does not completely prevent the acceptance of outside paid employment by those subject to its provisions, it does contain a number of restrictions on such employment. At the most fundamental level, the Code prohibits the use of state time, materials or personnel by a state employee in furtherance of outside work. Furthermore, Conn. Gen. Stat. §1-84(b) prohibits a public official or employee from accepting other employment that will, among other things, impair his or her independence of judgment as to his or her official duties. Conn. Gen. Stat. §1-84(c) in part seeks to guard against a public official’s or employee’s use of public office, however inadvertent, for financial gain.

Despite all honorable intentions, given the broad responsibilities entrusted to the Clerk, as well as the perceived or actual benefits available to members of the bar who appear, however seldom, before the Housing Court, the Clerk’s acceptance of a paid position on this arbitration panel would indeed constitute the impermissible impairment of the independence of judgment of the Housing Clerk in violation of §1-84(b). Additionally, although the interest arbitrators doubtless admire and seek expertise such as that demonstrated by the Clerk, an inadvertent violation of the §1-84(c) prohibition against use of office for financial gain would likely occur.

By order of the Commission,

Stanley Burdick,
Chairperson