Advisory Opinion No. 2001-15

Application Of The Code To DMV Hearing Officers

The State Ethics Commission has recently received two inquiries regarding the application of The Code Of Ethics For Public Officials to Department Of Motor Vehicle (DMV) Hearing Officers.

Said Hearing Officers are appointed by the Commissioner of the DMV pursuant to Conn. Gen. Stat. §14-4a. Given the manner of their appointment and the authority they exercise, DMV Hearing Officers are public officials and, therefore, are subject to the requirements of the Code. Conn. Gen. Stat. §1-79(k).

In essence, the recent inquiries set forth the following hypothetical:

An attorney who also serves as a DMV Hearing Officer represents a client in court in a criminal matter arising from a charge of driving under the influence (DUI). The attorney’s firm is paid a flat fee by the client for the legal work, which also includes representation in any related DMV hearing.

Subsequently, the client is called to appear at a DMV hearing concerning potential license suspension pursuant to the DUI charge. The attorney who represented the client in court now serves as the DMV Hearing Officer for this matter; while a partner in the firm represents the client. The attorney/hearing officer notes for the record that he represented the client in court; but does not disclose his affiliation with the client’s current attorney. The attorney moves to dismiss the charge based on a defect in the paperwork (i.e., the lack of an acknowledgment) and the Hearing Officer grants the dismissal.

Pursuant to Conn. Gen. Stat. §1-84(b) no public official may accept other employment which impairs independence of judgment as to state duties. Additionally, pursuant to Conn. Gen. Stat. §1-84(c) no public official may use his public office to obtain financial gain for himself or a business with which he is associated (a term which includes a law firm where one is a partner).

For purposes of this Ruling, it is assumed that the DMV Hearing Officer’s dismissal decision was correct. However, even with this assumption and even with the disclosure of prior representation, the hypothetical conduct constitutes egregious violations of §§1-84(b) and (c) of the Code. Furthermore, the violations would remain, even if the Hearing Officer had also disclosed his affiliation to the client’s attorney on the administrative record. Simply stated, no degree of disclosure would permit the official action in question. In fact, the attorney/hearing officer’s official participation in an administrative hearing when he had previously represented the subject of the hearing for compensation in a related criminal case would violate §§1-84(b) and (c) even absent the fact that the fee payment covered the administrative work and even absent the involvement of a member of his firm in the administrative hearing.

To the extent any such conduct is, in fact, occurring, it should cease immediately. To the extent any such conduct has, in fact, occurred, enforcement proceedings and potential sanctions, pursuant to Conn. Gen. Stat. §§1-82 and 1-88, provide the appropriate remedy.

Finally, based on Commission precedent, a public official serving in a judicial capacity at an agency (such as the DMV Hearing Officers in question) should not engage in any aspect of the practice of law before that agency. See State Ethics Commission Advisory Opinion No. 97-9, 58 Conn. L.J. No. 48, p. 3D (5/27/97).

By order of the Commission,

Rosemary Giuliano
Chairperson