|Advisory Opinion No. 00-4:||Whether the "rendering services" clause of the two year bar precludes a former DOT employee from assisting in the preparation of reports to be submitted to DOT.|
This advisory opinion is issued in response to a request by [ ], a former employee of the New York State Department of Transportation ("DOT"). He asks whether, during the two year post-employment period, he may work as an office engineer and perform services in support of a contractor's work on a State project.
Pursuant to the authority vested in the New York State Ethics Commission ("Commission"), by §94(15) of the Executive Law, the Commission concludes that [the requesting individual] may work as an office engineer in the manner described herein without violating the two year bar of Public Officers Law §73(8)(a)(i).
Until recently, [the requesting individual] was employed by DOT as a Civil Engineer I in the Region [ ] Construction Group as the [title]. He was responsible for the microcomputers, automation equipment and software used in the regional office and in the construction project field offices. He was also responsible for seeing that contractor-supplied equipment in the field offices met specifications and was installed properly. During the course of construction projects, he was contacted by the field office staff if they were experiencing problems with computer equipment or software.
Upon his separation from State service, [the requesting individual] would like to work as a consultant's office engineer on State projects.(1) In this capacity, he would be responsible for reviewing the reports submitted by the consultant's inspectors for accuracy and completeness; reviewing contractor-supplied material certifications and payrolls, entering data into the consultant's various computer programs and paper files; preparing reports for the consultant's resident engineer, and performing support duties such as filing, and answering telephones. He would be responsible for entering into a software program data all of which would be checked and initialed by another individual to verify accuracy. The software program would automatically calculate the quantities for payment and generates a progress payment estimate form and report. This form and report are submitted to the contractor resident engineer for review, signature and submission to DOT's engineer-in-charge.
The consultant's office engineer is also responsible for preparing orders-on-contract (change orders) using a software program at the direction of the resident engineer. The orders-on-contract would be necessary due to changing contract conditions. These orders-on-contract could result in increases or decreases to existing item quantities or the introduction of a new item into the contract. [The requesting individual's] role would be to enter the changed quantities into the computer program as requested by the consultant's resident engineer. The program would generate a printed form that [the requesting individual] will submit to the resident engineer for review. The justification for the changes would be prepared by the resident engineer and typed and printed by the office engineer. After reviewing and approving it, the resident engineer submits the report to the DOT engineer-in-charge for review, signature and processing. In all cases, the changes would be reviewed by the DOT engineer-in-charge and the DOT area supervisor in discussions or correspondence with the resident engineer. [The requesting individual] states that no report would go directly from him to DOT, that his contact with DOT would be minimal and that under no circumstances would there be any attempt by him to influence DOT in its decision making process.
The statutory language setting forth the two year bar is found in Public Officers Law §73(8)(a)(i), which provides as follows:
No person who has served as a state officer or employee shall within a period of two years after the termination of such service or employment appear or practice before such state agency or receive compensation for any services rendered by such former officer or employee on behalf of any person, firm, corporation, or association in relation to any case, proceeding or application or other matter before such agency.
These restrictions set the ground rules for what individuals may do with the knowledge, experience and contacts gained from public service after they terminate their employment with a State agency. The two year bar prohibits former State officers and employees from appearing, practicing or rendering services for compensation in relation to any case, proceeding, application or other matter before their former agency for two years following their separation from State service.
In Advisory Opinion No. 99-17, in the Commission revisited the interpretation of the post-employment restrictions in the context of a former DOT engineer employed as a construction inspector on a road construction project involving a State highway. In that instance, the former DOT employee was not required to write reports that would be submitted to DOT, take part in decisions relating to change orders or progress estimates, or otherwise seek guidance from DOT.
In Advisory Opinion No. 99-17, the Commission concluded that the two year bar against a former State employee "appearing or practicing" before his former agency reaches only efforts to influence a decision of the former agency or to gain information from the agency that is not generally available to the public. It does not forbid all communications with the agency. However, the Commission did conclude that contact between the former DOT employee and current employees concerning change orders and interpretation of design specifications would likely involve an attempt to influence DOT decisions and would still be prohibited. In contrast, the former DOT employee would be allowed to speak with current DOT employees concerning the consultant's daily schedule of work to be performed, as he would not likely be involved in an attempt to influence a DOT decision.
In this situation, there is no indication that [the requesting individual] will be "appearing or practicing" before his former agency in fulfilling his job as office engineer. The Commission must next determine whether he would be "rendering services" for compensation on a matter before his former agency, which would be barred.
The second clause of the two year bar, referred to as the "back room services" clause, precludes a former employee from rendering services for compensation in relation to any case, proceeding or application or other matter before his former agency. Thus, for example, the Commission has applied the "back room services" clause to preclude an individual during the two year period from accepting compensation to prepare documents for a private firm when it is reasonably foreseeable that the documents will be reviewed by his former agency. The Commission has held that preparation of an inspection report which the former employee has reason to believe will be submitted to DOT for review would be precluded. As the Commission more recently stated in Advisory Opinion No. 99-17,
once a contract has been awarded, the contract itself is not a matter before the agency, and a former employee is not prohibited from working on the contract merely because his former agency has awarded it.
However, any attempt by a former employee to modify the contract, seek change orders or progress estimates, would constitute rendering services on a matter before the former agency prohibited by the two year bar.
Turning to the circumstances before us, [the requesting individual] clearly could not have direct contact with the DOT engineer-in-charge concerning progress payments or change orders, or sign the contractor's reports requesting a progress payment or change order that would be submitted to DOT for the agency's review. These actions would be barred – the former as an appearance and the latter as the rendition of services on a matter before his former agency.
[The requesting individual's] role as office engineer requires him to take certain information from the consultant's inspectors and resident engineer, input the data into a software program selected by the consultant and through the programmed formula produce forms and reports for the resident engineer's review and submission to DOT. Thus, while the forms and reports that [the requesting individual] generates will be submitted to DOT, they are based on the input of others, including the resident engineer, who is ultimately responsible for reviewing, signing and submitting the reports to the DOT engineer-in-charge.
In Advisory Opinion No. 97-15, the Commission considered whether a former employee's taking of fingerprints was his work product, and thus, barred from submission to his former agency.(2) The Commission concluded that the taking of fingerprints was not the former employee's "work product," since the former employee did not create anything original or use his expertise to prepare a document representing his thoughts. It noted that the agency receiving the prints made no judgment based on the services provided by the person taking the prints. Thus, the former employee was not in a position to use any special knowledge of the agency or any contacts he may have.
Similarly, the Commission concludes that [the requesting individual's] entry of data provided by others and on behalf of others is not preparation of work product barred by the rendering services clause. He will not be creating anything original or using his expertise to prepare a document representing his thoughts. [The requesting individual] is a conduit of information, a facilitator, and a scrivener, but he will not personally contribute any original information to reports submitted to his former agency. While the "preparation" of inspection reports by a former employee has been barred by Commission opinions, the Commission interprets that precedent to allow a former employee to render support services which facilitate the physical preparation of such reports. Therefore, [the requesting individual] may take the job as office engineer, as he will be neither appearing nor rendering services on a matter before DOT within two years of separation from State service.
The Commission concludes that [the requesting individual] may work as an office engineer in the manner described herein without violating the two year bar of Public Officers Law §73(8)(a)(i).
This opinion, unless and until amended or revoked, is binding on the Commission in any subsequent proceeding concerning the person who requested it and who acted in good faith, unless material facts were omitted or misstated by the person in the request for opinion or related supporting documentation.
Paul Shechtman, Chair
Robert J. Giuffra, Jr.
Henry G. Gossel
O. Peter Sherwood, Members
Dated: October 6, 2000
1. In his request letter, [the requesting individual] also asked whether he may serve as a construction inspector for a consultant. The Commission provided [the requesting individual] with an informal opinion advising him that he could serve as a construction inspector during the post-employment period provided that he met the conditions set forth in Advisory Opinion No. 99-17.
2. It noted that it has previously barred former employees from submitting to his or her former agency environmental risk assessments and documentation in support of a permit application (Advisory Opinion No. 89-8); needs assessment surveys conducted by a consultant (Advisory Opinion No. 90-21); data and analysis (Advisory Opinion No. 94-6); and data concerning primary health care services delivered at certain clinics (Advisory Opinion No. 94-15).