ADVISORY OPINION 2009-3

Application of the Code of Ethics for Public Officials to Workers’ Compensation Commission Hearing Reporters

Introduction

The Citizen’s Ethics Advisory Board issues this advisory opinion at the request of Sandra Cunningham, ethics liaison for the Workers’ Compensation Commission (“WCC”).  Ms. Cunningham asked the following question about the application of the Code of Ethics for Public Officials (“Code of Ethics”) to WCC hearing reporters.

Facts

The main functions of WCC hearing reporters are to take verbatim testimony of formal hearings using a stenograph machine and to provide transcripts as required.  Hearing reporters are also responsible for performing other clerical duties related to the formal hearings process, including scheduling hearings, typing findings, functioning as liaisons concerning formal hearings, and entering data and filing.  The hearing reporter positions are all in the Administrative Clerical (NP-3) bargaining unit of the American Federation of State, County and Municipal Employees (“Union”).  These are 40-hour per week positions. 

As mandated by General Statutes § 51-63 (c), “[i]n addition to other compensation, official and assistant reporters and monitors shall be entitled to charge” from $0.75 to $3.00 per page depending on the party making the request and on whether that particular transcript has already been produced.  WCC hearing reporters do not produce a transcript for every formal hearing.  If a party orders a transcript, the hearing reporter then produces it and bills for it as provided by statute. 

Historically, WCC hearing reporters were allowed to use state time to produce transcripts for which they were paid by private parties.  In 1993, then-WCC Chairman Jesse M. Frankl sought to limit the amount of time spent on such transcript production, as the reporters received separate compensation for those transcripts.  The Union filed a prohibited practice charge alleging a change in working conditions.  WCC entered into a stipulated agreement with the Union in 1997 regarding the use of state time for the production of transcripts.  The stipulated agreement provides in pertinent part:

Hearing Reporters who are not involved in hearings will be allowed to work on workers’ compensation transcripts for private attorneys during the five hour period (Friday, 11:00 a.m. to 4:30 p.m.) per week when the commissioners are generally engaged in writing decisions. If the anticipated workload (e.g., emergency hearings, decision deadlines) would preclude a reporter from working on transcripts during the designated Friday period, the reporter may request and the office manager may, in his/her discretion, allow the reporter up to one hour per day that week, not to exceed a total of five hours, for transcript work.

The agreement further reads:

Hearing reporters will not use State copiers, paper, etc., for the preparation of privately requested transcripts. The hearing reporters will not engage in any activities related to billing for transcripts while on State time or using State equipment, including but not limited to telephones, computers, copiers, etc.

It is understood by both parties that this agreement will allow the hearing reporters to continue typing transcripts for private attorneys so that workers’ compensation cases will not be delayed.  If the transcript has not been completed within forty-five (45) days of the hearing, the Commission reserves the right to require that the stenographic record be given to the agency for transcription by an independent stenographic contractor of the agency’s choice.  The Commission shall receive a copy of the transcript without charge.

During the other thirty-five hours in the work week, WCC hearing reporters have other assigned duties, such as typing decisions and scheduling hearings.  The reporters are also, of course, in attendance at the formal hearings taking testimony.  If no transcript is ordered by a private party, but a commissioner wants one, then the hearing reporter produces it during regular work time, outside of the five hours in question.  The five-hour period has been provided strictly to work on those transcripts for which hearing reporters will be paid by the private requesting parties. 

The WCC and the Union are in the process of renegotiating this contract.  The WCC has sought guidance from the Office of State Ethics as to the propriety of the above-stated agreement.

Question

Whether it is permissible, under the Code of Ethics, for WCC hearing reporters to use five hours of state-compensated time to engage in activity that generates income from private sources.

Conclusion

It is not permissible, under the Code of Ethics, for WCC hearing reporters to use five hours of state-compensated time to engage in activity that generates income from private sources.

Analysis

“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.”[1]  Both the former State Ethics Commission (“former Commission”) and this Board have consistently stated that state time may not be used for private financial gain.  For example, in Advisory Opinion No. 2001-22, when asked whether a professor who was invited to give two weeks of lectures abroad under a Fulbright Award may accept the $200 per day honorarium associated with the award while also receiving his full state salary, the former Commission responded that “[i]f it is determined that the trip is occurring on state time, then under the Ethics Code, the professor could accept none of the honoraria but should receive his full salary and may direct the Fulbright program to donate the honorarium to the University or to any bona fide charity of his choosing.” And in Advisory Opinion No. 2007-4, the Citizen’s Ethics Advisory Board stated that “a state employee may not use state time, materials, or personnel to further his outside employment.”

Because of the nature of their work, WCC hearing reporters already receive certain liberties that the Code of Ethics would not grant to other state employees.  In essence, hearing reporters are statutorily permitted to charge privately for work product that arises as a result of their state positions.  This would be an inappropriate use of office or position for most other state employees.  As noted in Advisory Opinion No. 99-22: “a state employee may not be paid privately to do what he or she is essentially already required to do as part of his or her state job.”

Although certain liberties are granted to reporters in their creation of transcripts, the former Commission refused to grant them carte blanche.  For example, in Advisory Opinion No. 94-2 the former Commission addressed the issue of court reporters (who are also subject to § 51-63) charging for expedited transcripts.  It advised that absent a pre-set rate for expedited work, the charge of a higher fee may be considered “an unacceptable use of office by the court reporters under Conn. Gen. Stat. §1-84(c).”

Similarly, in the case of WCC hearing reporters, absent an exception in the Codes of Ethics or elsewhere in the general statutes, the creation of transcripts produced for private parties from which the hearing reporters will be compensated separately is prohibited by the Code of Ethics.  While the legislature has made it clear that it wants to create a special exemption to the Code of Ethics by entitling hearing reporters to charge privately for work product that arises as a result of their state positions, no such exemption exists allowing them to conduct such activity on state time. 

In our opinion, absent a statutory exemption with respect to state time, the hearing reporters should be treated like the professor who was invited to give two weeks of lectures abroad under a Fulbright Award.  As a “faculty member on paid professional leave, the work performed during that time period is considered part of his assigned duties.”[2]  Nonetheless, the professor was warned that he had to refrain from accepting any honoraria if he should engage in the activity during state time.[3]  Similarly, hearing reporters who are paid by private parties to create transcripts should not engage in such activity during state time.  If they do engage in such activity during state time, the hearing reporters must not accept remuneration. 

It is irrelevant that a union contract allows for the creation of transcripts for which hearing reporters will be paid by the requesting parties.  As this Board has previously stated, absent an exception in the Codes of Ethics or elsewhere in the general statutes, the Code of Ethics supersedes a union contract clause that sanctions a violation of the Code of Ethics.[4]

Finally, this Board is cognizant of the fact that the union contract allows hearing reporters to continue typing transcripts for private attorneys so that workers’ compensation cases are not delayed.  In fact there are many activities which, although potentially beneficial to the state, are not permissible under the Code of Ethics.  For example, in Advisory Opinion No. 2007-12, a weeklong conference for state math and science teachers was deemed not to be a permissible gift to the state because, although beneficial to the state, the personal benefit to the state employee was inappropriate.  It is fortunate that the union contract allows for the Workers’ Compensation Commission “to require that the stenographic record be given to the agency for transcription by an independent stenographic contractor of the agency’s choice.”  Such an alternative allows for the timely continuation of workers’ compensation cases while also avoiding the Code’s prohibition on the use of state time in furtherance of outside work.

In conclusion, it is not permissible, under the Code of Ethics, for WCC hearing reporters to use five hours of state-compensated time to engage in activity that generates income from private sources.

By order of the Board,

                                                                                                Robert Worgaftik, Chairperson

Dated February 26, 2009