Advisory Opinion No. 2000-10

Application Of The Ethics Code To Teachers’ Bargaining
Representative Serving On Arbitration Panel

The Director of Affiliate and Member Development ("Director") of the Connecticut Education Association ("CEA") has asked the State Ethics Commission whether it is permissible under the Code of Ethics For Public Officials, Conn. Gen. Stat. Chapter 10 Part I (the "Code"), for him to serve on an arbitration panel under the following circumstances. The Director would be chosen to represent the interests of the teachers’ bargaining representative pursuant to Conn. Gen. Stat. §10-153f, which section established a three-person arbitration panel with authority to issue awards in cases not settled during negotiations or mediation. One panel member is neutral and serves as chairperson; another member is appointed by the board of education; and the third member is appointed by the teacher’s bargaining representative. In the capacity of the Director’s full-time employment with the CEA, he supervises a staff of negotiators who often represent local CEA affiliates in arbitration under §10-153f. The Director has asked whether he can serve as the teacher bargaining representative arbitration panel member in an arbitration in which the advocate of the exclusive teacher bargaining representative is a CEA employee-negotiator whom the Director supervises.

Given their manner of appointment and the authority that they exercise, the arbitration panel members 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 outcome of any case arbitrated has no effect on any remuneration received by the Director either in his capacity as a CEA employee or as an arbitration panel member. Such might not be the case were the Director instead an attorney engaged in the private practice of law before whom now appears an associate representing a client, for instance. Likewise, were the Director’s own supervisor or other individual with authority to affect his income or promotional opportunities to appear before him in his capacity as an arbitrator, then different considerations arise. In such a case, the Director’s independence of judgment with regard to his official duties would likely be impaired making such dual roles untenable pursuant to Conn. Gen. Stat. §1-84(b).

Although it could be argued that the presence of an advocate who otherwise reports to a panel member may render the panel member partisan in fact or appearance, in fact only the panel’s chairperson is chosen to act in the neutral role. As this Commission has long recognized, "When the General Assembly provides for the appointment to a board or commission of someone in a position such that there is an inherent conflict of interest, it in effect grants that person a waiver of certain conflict of interest provisions of the Code…." Advisory Opinion No. 80-20, 42 Conn. L.J. No. 26, pp 21,22. The Director’s very presence on the panel is as an inherently biased representative of the exclusive bargaining agent. The absence or presence of a CEA subordinate in an advocacy role neither exacerbates nor ameliorates this condition absent specific facts to indicate that the Director would be rendered incapable of carrying out his responsibilities as a panelist due to the presence of the particular advocate. The appropriate remedy if such a situation arose would be for the Director to recuse himself from that particular proceeding enabling another arbitrator to take his place.

In summary, upon review, no aspect of the above-referenced facts suggests impropriety or illegality under the Code of Ethics For Public Officials.

By order of the Commission,

Stanley Burdick
Chairperson