Advisory Opinion No. 1998-12

Application of Code of Ethics to Workers Compensation Commissioners,
Including Per Diem Commissioners

Thomas G. Cotter, Esq. has asked the State Ethics Commission to determine when Conn. Gen. Stat. §1-84b(b)’s one-year prohibition against appearing before his former agency representing anyone for compensation begins for him. Based on the information received from the Workers Compensation Commission’s Bridgeport office, the facts are as follows: Attorney Cotter served as a Workers Compensation Commissioner, working in both the Bridgeport and Stamford offices. Effective March 26, 1997, Attorney Cotter resigned from the Commission. Through the middle of May of 1997, however, Attorney Cotter continued to hear Commission dockets on a per diem basis. Finally, there are still outstanding at least two cases begun by then-Commissioner Cotter for which live testimony must be taken and decisions written. According to the spokesperson from the Bridgeport office, under the Workers Compensation statutes, cases begun with a formal hearing must stay with the original Commissioner unless the parties agree to send the matter to a new Commissioner and start over.

As a preliminary matter, under the Code of Ethics for Public Officials, Conn. Gen. Stat. §1-79 et seq., Attorney Cotter is a public official while he serves as a Workers Compensation Commissioner. The Code prohibits a public official from accepting outside employment which would impair his independence of judgment with regard to his state duties, and also from using his state office or position, however inadvertently, for financial gain for, among others, himself or a business with which he is associated. See Conn. Gen. Stat. §§1-84(b), 1-84(c). Therefore, of course, Attorney Cotter could not practice before the Commission while sitting as a Commissioner. Also, under the Code, a "business with which he is associated" is defined to include any business in which the public official is a partner, director, officer, owner, or holder of five percent or more of the outstanding stock of any class. Conn. Gen. Stat. §1-79(b). In speaking with the State Ethics Commission, Attorney Cotter made it clear that the firm he was associated with both before and after his tenure as a Workers Compensation Commissioner is a business with which he is associated. It is settled Commission precedent that unless Attorney Cotter has completely severed his ties with his law firm, the firm may not appear before the Commission during his tenure as a Commissioner. See State Ethics Commission Advisory Opinions No. 94-16, 56 Conn. L. J. 11, p.2B (9/13/94) (Law firm of public official serving in judicial capacity at state agency may not appear before agency at any stage of agency proceedings) and No. 97-9, 58 Conn. L. J. 48, p.3D (5/27/97), (CHRO hearing officer may not engage in practice of law before CHRO).

The first issue raised by Attorney Cotter’s question is whether he continued to be a "public official" as that term is used in Conn. Gen. Stat. §1-79(k), when, after resigning as a Commissioner, he returned to dispose of cases as a former Commissioner. The statutes governing the workers compensation system state in part that "any compensation commissioner, after ceasing to hold office as such compensation commissioner, may settle and dispose of all matters relating to appealed cases, including correcting findings and certifying records, as well as any other unfinished matters pertaining to causes theretofore tried by him, to the same extent as if he were still such compensation commissioner." Conn. Gen. Stat. §31-278. Since the authority to return in this capacity stems from the former commissioner’s original appointment as a public official, and since that authority is identical to the authority he wielded as a full commissioner, it would be logical to extend the Code of Ethics’ application to him while he completes work begun as a commissioner. Nonetheless, the language of §31-278 makes it clear that the returning former commissioner has "ceas[ed] to hold office," and therefore is no longer a public official subject to the Code’s restrictions.

The second issue is whether Attorney Cotter is subject to the Code of Ethics as a per diem commissioner. Under Conn. Gen. Stat. §31-280(a), "the chairman [of the Workers’ Compensation Commission] may, within available appropriations, appoint as acting commissioners on a per diem basis from among former workers’ compensation commissioners or qualified members of the bar of this state." Conn. Gen. Stat. §1-79 (k) states that public official means "any statewide elected officer, any member or member- elect of the general assembly, any person appointed to any office of the legislative, judicial or executive branch of state government by the governor, with or without the advice and consent of the general assembly, any sheriff or deputy sheriff, any person appointed or elected by the general assembly or by any member of either house thereof; and any member or director of a quasi-public agency; but shall not include a member of an advisory board, a judge of any court either elected or appointed or a senator or representative in Congress."

Applying this section to the facts presented, it is clear that Attorney Cotter, when sitting as a per diem Commissioner, is not a public official since he is appointed by the chairman and not by the governor or a legislative member. Therefore, the rules of the Ethics Code which apply to public officials do not apply to him in that capacity. Per diem Commissioners do sign personal service agreements, however. By statute, they have "all the powers and duties of compensation commissioners." §31-280(a). Therefore, per diem Commissioners are subject to the restrictions of Conn. Gen. Stat. §1-86e, which apply to independent contractors and consultants. See Ethics Commission Advisory Opinion No. 94-13, 56 Conn. L. J. No. 4, p. 1C (7/26/94) (Individuals hired under personal service agreements are independent contractors, subject to the restrictions of Conn. Gen. Stat. §1-86e.) In part, §1-86e prohibits the use of authority provided to a person under a state contract, or use of any confidential information acquired in the performance of the contract, to obtain financial gain for the person, an employee of the person, or a member of the person’s or employee’s immediate family.

Turning to Attorney Cotter’s question, since he ceased to be a public official upon his resignation from service as a Workers’ Compensation Commissioner, the one year prohibition of Conn. Gen. Stat. §1-84b(b) began on March 26, 1997, the date of his resignation. In this first year, Attorney Cotter may not practice before the Workers Compensation Commission: prohibited activities include making phone calls, signing letters (or even having one’s name on the letterhead), attending meetings at which agency personnel are in attendance, or otherwise taking an action which lets one’s former agency know that the former official represents the individual in question. Similarly, in the first year, Attorney Cotter may not share in the profits generated by others in his firm for work before the Commission. See Advisory Opinion No. 89-13, 50 Conn. L. J. 46, p. 1C (5/16/89) (Former Insurance Commissioner may accept partnership in law firm after leaving state service, but "should not benefit from the labors of his colleagues" who make appearances before Insurance Department in the first year after his departure from that agency).

The one-year time limit is not affected by Attorney Cotter’s work as a per diem Commissioner, since he was not technically a public official when he provided those services. The State Ethics Commission recognizes, however, that the terms "use of state authority" and use of "public office or position" as used in §§1-86e and 1-84(c) create identical restrictions on the activities of those covered by these sections. Therefore, under §1-86e, while Attorney Cotter is under a personal service agreement as a per diem Commissioner, he is prevented from taking workers compensation cases, since such work would be an impermissible, however inadvertent, use of his state authority for the benefit of himself and his employees. And, as this Commission has stated in previous opinions, it would create an untenable conflict of interests for members or employees of Attorney Cotter to practice before the Workers Compensation Commission while he sits in a quasi-judicial capacity, disposing of cases which could have an impact as precedent on cases simultaneously handled by his firm. See State Ethics Commission Advisory Opinions, No. 94-16 and No. 97-9 (supra.)

This ruling addresses the same concerns as are addressed by the restrictions placed by the Judicial Department on an similar per diem appointment established by statute. Attorney magistrates hear small claims and motor vehicle matters and receive a per diem fee. Conn. Gen. Stat. §§51-193l through 51-193u. Unlike an attorney trial referee, who does not have the power to enter judgment and whose findings are subject to judicial approval, the decision of a magistrate becomes the judgment of the court if no demand for a trial de novo is filed within five days. The authority granted to attorney magistrates is considerably less than that granted by statute to per diem Workers Compensation Commissioners, who "have all the powers and duties of compensation commissioner." Conn. Gen. Stat. §31-280(a). Nonetheless, according to the rules of the Superior Court, Court Operations Division, "an attorney may not serve as a magistrate at a geographical area court or housing session location in which that attorney has an appearance on file in any case, in any type of litigation. In addition, an attorney serving as a magistrate may not file an appearance in any matter in this state which may be heard by a magistrate, including small claims cases. Furthermore, an attorney may not serve as a magistrate in any geographical area court or housing session location in which any member of a law firm with which that attorney is associated has an appearance on file in any case, in any type of litigation." The application of the Ethics Code to per diem Workers Compensation Commissioners and their law firms similarly recognizes the need to prevent conflicts of interest for those serving the state in a quasi-judicial capacity.

By order of the Commission,

Stanley Burdick
Chairperson