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New York State Ethics Commission
Alfred E. Smith State Office Bldg.
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Albany, NY 12210


Advisory Opinion No. 04-7:

Application of the two-year bar of Public Officers Law §73(8)(a)(i) and Advisory Opinion Nos. 99-17 and 00-04 to a former employee of the Department of Transportation.


INTRODUCTION

The following advisory opinion is issued in response to a request submitted by [ ] a former employee of the New York State Department of Transportation (“DOT”), who seeks to obtain employment with a consulting engineering firm as an Office Engineer on a DOT contract.

Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission (“Commission”) concludes that, because [the former State employee] would report directly to a DOT employee and would have substantial contact with DOT employees, he may not accept the position of Office Engineer in this situation.

BACKGROUND

[The former State employee] retired on [date] from DOT’s Region [ ]. He would like to accept employment with a consulting engineering firm as an Office Engineer on a particular DOT contract.He states that the project will be staffed by both DOT employees and consultant employees. The Engineer in Charge (“EIC”) will be a DOT employee.[The former State employee] had no prior involvement with this project while employed with DOT. It is the Commission’s understanding that the consulting firm may submit his name for the position of Office Engineer to DOT for approval.

[The former State employee’s] duties as an Office Engineer would include entering data from inspectors’ reports submitted by both DOT and consultant employees into a computer program.He states that the reports will be reviewed and signed by the EIC, after having been checked and initialed by another individual to verify accuracy. The software program would automatically calculate the payments and generate a progress payment estimate form and report, which is submitted to the EIC for review, signature and submission to the DOT area supervisor for approval.[1]

[The former State employee] will also be responsible for entering data for order-on-contracts (“OOCs”) at the direction of the EIC, who will prepare the justification for the increases and decreases. The software will generate a printed form that will be submitted to the EIC for review, signature and submission to the DOT area supervisor for approval.

APPLICABLE STATUTE

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 office rs 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.

DISCUSSION

In Advisory Opinion No. 99-17, the Commission was asked by a former DOT engineer whether he could be employed by a consulting engineering firm as a construction inspector on a road construction project involving a State highway.[2] The project, funded with federal, State, and city monies, was administered by a local municipality which had the responsibility for advertising for bids, and awarding and administering the contract work. The consulting firm for which the former employee sought to work was selected by the locality to perform inspection services on the project.   During the course of the project, DOT personnel would make periodic site inspections to ensure compliance with design specifications.  However, DOT would not have day-to-day administration on the project; instead that would be the responsibility of the municipality.   The former DOT employee further stated that the position he sought with the consultant would not require him to participate in meetings with DOT representatives, 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.

After re-examining its precedents, the Commission concluded that the 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.Thus, where a former DOT employee was once prohibited from communicating with employees of his former agency, the Commission in Advisory Opinion No. 99-17 adopted a less restrictive approach that would permit a former DOT employee to have contact with DOT, provided that the contact will not be an attempt to influence DOT decisions on the particular project or to seek restricted information. 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.[3]

In another formal opinion, the Commission held that a former DOT employee could work as an Office Engineer for a consultant.There, the former employee’s duties were similar to [the former State employee’s] in that the Office Engineer would enter data into a software program that would automatically calculate quantities for payment and generate reports. The Commission stated that “entry of data provided by others and on behalf of others is not preparation of work product prohibited by the rendering services clause” (see, Advisory Opinion No. 00-04).In that case, however, the requesting individual reported to the consultant’s resident engineer, not the DOT EIC.

What makes the instant case distinguishable is that [the former State employee], while performing the duties of an Office Engineer, will be reporting directly to the DOT EIC which will cause him to violate the two-year bar. Specifically, his entering data for the OOCs at the direction of the EIC will cause him to appear before DOT in violation of the two-year bar because he will be dealing directly with the EIC, rather than reporting to the consultant’s resident engineer. In addition, [the former State employee] will have substantial contact with DOT employees; a fact which was not present in Advisory Opinion Nos. 99-17 and 00-04. Moreover, the consulting engineering firm apparently submits the name of the candidate for the position of Office Engineer to DOT for approval. Such a submission would be a prohibited appearance.Thus, as proposed, he may not serve as an Office Engineer.[4]

CONCLUSION

The Commission concludes that, because [the former State employee] would report directly to a DOT employee and would have substantial contact with DOT employees, he may not accept the position of Office Engineer in this situation.

This opinion, until and unless 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. All Concur:


Paul Shechtman, Chair
Carl H. Loewenson, Jr.
Lynn Millane
Susan E. Shepard, Members

Dated: September 17, 2004


End notes

[1] He states that he will also review contractor-supplied material certifications and payrolls for accuracy, and perform support duties such as filing, answering the telephone, maintaining a visitor’s log, photograph log and correspondence file, etc.

[2] The individual who was the subject of Advisory Opinion No. 99-17 initially asked the Commission for permission to serve as a Project Manager for a consultant on a municipally-administered highway improvement contract. Because the position of Project Manager, as described, involved meetings with DOT on substantive matters, the Commission concluded that it was doubtful the individual could serve in that position. The former DOT employee then asked permission to serve as the construction inspector for the same project, which was approved by the Commission in Advisory Opinion No. 99-17.

[3] In Advisory Opinion No. 99-17, the Commission also considered the second clause of the two-year bar, referred to as the “back room services” clause, which precludes a former employee from rendering services in relation to any case, proceeding or application or other matter before his former agency. That discussion is not relevant to the instant opinion as it is [the former State employee’s] contact with DOT employees that is at issue.

[4] The Commission notes that recently-passed legislation (S.5148-A / A.11591)*, currently awaiting the Governor’s signature, would allow [the former State employee] to contract individually, or as a member or employee of a firm, corporation or association, to render services to DOT if, prior to engaging in such services, the DOT Commissioner certifies in writing to the Commission that [the former State employee] has expertise, knowledge or experience with respect to a particular matter which meets the needs of the agency and is otherwise unavailable at a comparable cost. The Commission must review and approve all such certifications. Moreover, if such a contract requires approval under State Finance Law §112, the New York State Comptroller must review and consider the reasons for such certification.

* [ED. NOTE: Subsequent to the issuance of this opinion, Governor George E. Pataki signed Chapter 523 of the Laws of 2004 making the legislation law.]