Advisory Opinion No. 1994-2
Application Of
Code Of Ethics To Court Reporters
Court reports and court monitors (denoted herein as “court
reporters” for brevity’s sake) are state employees whose actions are subject to
the Code of Ethics for Public Officials.
See Conn. Gen. Stat. §1-79(m).
Court reporters receive a salary or per diem payments from the State of Under Conn. Gen. Stat. §1-84(i), no state employee may enter
into a contract with the state valued at one hundred dollars or more, other
than a contract of employment as a state employee or pursuant to a court
appointment, unless the contract has been awarded through an open and public
process, including prior public offer and subsequent public disclosure of all
proposals considered and the contract awarded.
Thus, a preliminary issue arising from Mr. Kamasinski’s question is
whether the court reporters’ preparation of transcripts is part of their
responsibilities as state employees, or whether such activity is outside
employment subject to the constraints of §1-84(i) if the request for a
transcript comes from a state agency. The Judicial Department, through its attorney Martin Libbin,
indicates that the preparation of transcripts is considered part of court
reporters’ “sworn judicial duties,” and that, therefore, the contracts
implementing that preparation should never be subject to §1-84(i). Mr. Kamasinski argues that while the
preparation of transcripts may be their responsibility as state employees,
their contracts for payment are private and should be subject to §1-84(i). He cites several letters from the Judicial
Department and one informal letter from an assistant attorney general in
support of his position, including a September 20, 1993 letter from Attorney
Libbin which states in part that “the Court Operations Division does not have
the authority to order the return of funds [paid to a court reporter], although
it can discipline employees in accordance with the collective bargaining
agreement.” The preparation of transcripts is clearly part of the court reporter’s
duties as a state employee. As Mr.
Kamasinski correctly points out, it is equally clear that the payment for such
services comes from sources other than the Judicial Department, either from
private parties or from an interested state agency in need of a
transcript. What is not so clear is how
this unusual form of compensation affects the application of §1-84(i). It is the opinion of the State Ethics Commission
that, despite the clouding effect of this method of compensation, the contracts
made between court reporters and those ordering transcripts are not subject to
the open and public process requirements of §1-84(i), because in preparing
those transcripts, court reporters are performing work required of them in
their state jobs. The Commission also
notes that the possibility of contracting with someone other than the court
reporters to perform the transcribing work raises reasonable concerns regarding
the practical administration of such an open process. Mr. Kamasinski’s question raises a second area of concern,
however. In his Conn. Gen. Stat. §1-84(c) prohibits any state employee from
using his or her public office or position to obtain personal financial
gain. In Conn. Gen. Stat. §51-63, the
legislature has set out the fees which a court reporter may charge for the
preparation of a transcript. The Ethics
Commission has consistently held that state employees may not collect a fee
beyond that which is allowed to them by statute or contract. See State Ethics Commission Advisory Opinion
No. 89-20, 51 For example, it is apparent from the materials received from
both Mr. Kamasinski and from the Judicial Department that many, if not all,
court reporters have consistently been charging fees in excess of the statutory
rate for transcripts which they have deemed to be “expedited.” It is clear that the concept of “expedited”
transcripts has been acknowledged by the State and specifically by the Judicial
Department, both in the actions of state personnel (including judges) in
ordering and paying for expedited transcripts, and in at least one memorandum
to the court reporters from the Executive Committee of the Judges of the
Superior Court which includes among its list of “Transcript Production
Priorities” any “expedited copy in non appeals, if authorized by court
order.” See Memorandum to All
Court Reporters from Dexter B. Lyman, Supervisor, dated What remains unclear is the legal justification for the rate
charged by court reporters for these expedited transcripts. The Judicial Department has suggested that
the justification for such an expedited fee appears to be the language of
§51-63, which sets the fees for transcripts and requires that the copies of the
transcript “shall be furnished within a reasonable time.” Conn. Gen. Stat. §51-63(d). Accordingly, that agency has apparently
allowed court reporters to charge a fee in excess of the statutory rate when
the transcript is prepared in less than “a reasonable time.” Although the Commission recognizes that a
different rate for expedited work may very well be appropriate, the mere fact
that the Judicial Department has “allowed” an expedited rate, without statutory
authority, is not sufficient to prevent this Commission from considering such a
fee an unacceptable use of office by the court reporters under Conn. Gen. Stat.
§1-84(c). Without legal authority
defining the term “expedited” and setting the rates for expedited work, the
court reporters may not charge more than the statute setting their rates
allows. The effect of this ruling is stayed until By order of the Commission, Christopher T. Donohue
Chairperson