|Advisory Opinion No. 96-27:||Whether the lifetime bar contained in Public Officers Law §73(8) bars a former State employee from conducting scientific research as a consultant to his former agency with respect to a transaction related to one in which he participated while in State service.|
The following advisory opinion is issued in response to a request by Ann Hill DeBarbieri ("DeBarbieri"), an attorney with the New York State Department of Environmental Conservation ("DEC"), who asks whether the lifetime bar of the Public Officers Law precludes DEC from entering into a contract with [a private college] under which [ ], a former DEC employee and a current employee of [the private college], would perform certain research, laboratory and consulting services for DEC pertaining to contamination in the Hudson River and other waters.
Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") hereby renders its opinion that DEC may enter into such contract and [the former employee] may perform services pursuant to the contract, as the services he would perform are not part of the same transaction in which he personally participated during his period of State employment.
1. [The former employee's] Expertise
[The former employee] is a scientist who has long been engaged in extensive research and the study of polychlorinated biphenyls ("PCBs"). His efforts have included significant work in relation to the upper portion of the Hudson River, where PCB contamination presents a serious problem. Prior to [date], [the former employee] worked at [ ] University and [ ] Geological Observatory. In [date], he joined DEC to work on what was intended to be a major clean-up project of the upper portion of the river. After spending 16 months on this project, he left DEC and joined the faculty of [the private college]. During his professional career, [the former employee] has gained expertise and knowledge of the PCB problem in the upper Hudson River that is probably unmatched.(1)
The assessment of the Hudson River has proceeded since [the former employee] left DEC, but it has been difficult, as new obstacles have arisen. This is described in greater detail below. At this time, DEC and the other entities involved in the project, both public and private, are attempting to deal with some of these difficulties in order to move the effort along. Because of [the former employee's] unique knowledge, DEC would like to retain him, through a proposed contract with [the private college], to engage in some needed scientific work. It argues that his extensive expertise is necessary and is not found elsewhere.
2. A Short History of the Project
According to DEC, approximately 1.1 million pounds of PCBs were discharged into the Hudson River during a 30 year period ending in 1977. The discharges were from two General Electric Company ("GE") capacitor manufacturing plants, one located in Fort Edward and the other in Hudson Falls. A substantial portion of the discharged PCBs adhered to sediments which accumulated behind a dam in Fort Edward. When the dam was removed in 1973 due to deterioration, the PCB-contaminated sediments were released downstream.
The amount of sediment released by the destruction of the dam was significant. During the following spring, navigation channels in the upper Hudson were impeded or blocked, causing flooding in the surrounding areas. The Department of Transportation ("DOT") began dredging the channels, removing over one million cubic yards of sediment, containing 175,000 lbs of PCBs, and depositing it at four sites along the upper Hudson. The sediment remains at these sites, each covering several acres of land. DEC was brought in to evaluate the disposition of that soil.
DOT's dredging did not remove all of the PCBs from the Hudson. Studies conducted to evaluate the extent of the problem revealed that most of the contaminated sediments settled in forty "hot spots" in a forty mile stretch of the Hudson River between Fort Edward and Troy.(2) In 1983, it was determined that the problem was serious enough to be considered for inclusion on the federal Superfund National Priorities List. In September, 1984, the Environmental Protection Agency ("EPA") issued a Record of Decision with respect to the Superfund site in which an interim "No Action" alternative for the PCB-contaminated river sediments was selected.(3) As the preferred remedy to the problem, the EPA selected "in-place containment of the remnant deposits." However, in [date], shortly before [the former employee] was hired by DEC, the EPA announced that the "No Action" decision would be reassessed, in part due to DEC's urging.
[The former employee] was hired by DEC in [date], as a Project Research Scientist, a non-policymaking position. He was assigned to the Project Sponsor Group ("PSG"), the unit at DEC largely responsible for the State's evaluation of the Hudson River PCB problem. In particular, the unit was charged with studying the disposal of the dredged sediment at the DOT containment sites. The PSG planned to dispose of the PCB contaminated sediments by moving them to a containment area which the State was contemplating constructing at Disposal Site 10, located in Washington County. According to [the former employee's] former DEC supervisor, the PSG was a separate group within DEC. It was not responsible for the Hudson River Reassessment Project then being conducted under the auspices of EPA.
DEC officials advised the Commission that 95% of [the former employee's] responsibilities as a DEC employee were concerned with the PSG's mandate to determine the "budget," or volume, of PCB contamination in the dredged soil. Toward that end, [the former employee] worked with DEC's chemists in developing a new congener specific method for the analysis of PCBs. This new method gave a more accurate representation of the quantity of PCBs present in the river sediments. He also provided consultation to DEC's Regional staff in the review of PCB analytical results. All of [the former employee's] activities were concerned with the technical needs of the encapsulation site so as to minimize PCB contamination of the surrounding area.
At the Commission's request, [the former employee] provided details of his employment with DEC. He stated that he:
DEC advised the Commission that in [date] shortly after [the former employee] left DEC, conditions in the Hudson River changed dramatically. A new source of PCBs along the eastern shore line of the River adjacent to GE's Hudson Falls and Fort Edward facilities was located. Further research brought to the forefront information regarding long term PCB discharges into the Hudson River from outfall pipes, groundwater seeps and sediments washing into the river. It was demonstrated that pure PCB oil continued to flow into the River. These "new" PCB sources have complicated all of the scientific issues, including those arising from the original releases and the dam removal. This new contamination has brought about a change in the thinking of DEC about the problem: what had once been viewed as the need to remediate a sediment problem has been expanded into a problem of containing a continuing flow of PCBs into the river. At present, there are complications pertaining to the uncontrolled releases of PCBs that are not well understood.
DEC officials advise that PCB identification technology, as well as sampling protocols, have been upgraded and refined. Volumes of academic research have been published expanding the overall knowledge base for containment. As one DEC engineer explained, "what [the former employee] dealt with in his early involvement here and the situation now is like comparing a model T Ford to a Dodge Viper. They are both automobiles but the levels of sophistication are magnitudes apart."
3. The Proposed DEC-[private college] Contract
DEC proposes to enter into a sole-source contract with [the private college's] Department of Earth and Environmental Sciences for research, laboratory and consulting services related to the Hudson River, New York Harbor, Harbor dredge spoil issues, and Long Island Sound. The proposed DEC/[private college] contract would require the contractor:
to provide personnel and equipment, when needed, to collect, process, and date sediment core samples for New York State lakes and rivers. Complete ELAP-certified laboratory and consulting services are required to determine sediment depositional chronologies and accumulation rates. . . .
An important priority for DEC is the ongoing EPA reassessment of the Hudson River, which has been designated a Superfund site. The proposed scope of services in the contract would require [the private college] to perform the following:
DEC needs the analytical data generated through research conducted by [the private college], as well as [the private college's] assessment of the Hudson River sediment data amassed during studies of the River conducted by DEC and potentially responsible parties.
That DEC intends to retain the services of [the former employee] through this contract is clear. It has stated that "We believe there is no other contractor who can provide the Department with the required proficiency in these complex scientific matters." DEC has advised the Commission that it hopes that [the former employee] can develop new ideas, new tests and/or new approaches to resolving some very difficult problems.
DEC has asked the Commission whether it can enter into the contract with [the private college] for the services of [the former employee] without a resulting violation of the revolving door statute.
The lifetime bar found in Public Officers Law §73(8)(a)(ii) limits certain post-employment activities by former State employees. It provides that:
No person who has served as a state officer or employee shall after the termination of such service or employment appear, practice, communicate or otherwise render services before any state agency or receive compensation for any such services rendered by such former officer or employee on behalf of any person, firm, corporation or other entity in relation to any case, proceeding, application or transaction with respect to which such person was directly concerned and in which he or she personally participated during the period of his or her service or employment, or which was under his or her active consideration.
This subdivision permanently prohibits former State employees from appearing before any State agency or rendering services for compensation in relation to any transaction with which they were directly concerned and in which they personally participated, or which they actively considered while in State service. As stated by the Commission in Advisory Opinion No. 88-1:
it sets the ground rules for what an individual may do with the knowledge, experience and contacts gained from public service after they terminate their employment with a State agency.
That [the former employee] conducted research and performed analysis on PCBs in the Hudson River while in State service is clear. The question for the Commission is whether the services he performed for the PSG and those services proposed in the contemplated DEC/[private college] contract are all part of the same transaction. The Commission concludes that, based upon the changing location of the sediments, the new sources of PCB pollution, the vastly expanded knowledge base and the confined nature of [the former employee's] involvement with PCBs while at DEC, the previous work and the proposed contract services constitute separate transactions for purposes of the lifetime bar.
This conclusion is based on an analysis of prior Commission opinions. In Advisory Opinion No. 95-6, a former DEC engineer asked the Commission whether the lifetime bar prohibited him from performing engineering services with respect to the clean-up of a large landfill. The engineer had performed investigative services at an early stage of the project while he was in State service. The Commission, after undertaking a detailed examination of the history of the landfill, held that the former employee could not render engineering services despite many intervening events, i.e., the passage of a significant period of time, the progression from investigation to remediation, and the issuance of a new consent order pertaining to the remediation of the long-standing environmental hazards at the site. The Commission found that the essence of the "transaction" remained the same -- its subject and purpose, the parties interested and affected, and ultimate goal were unchanged.
In Advisory Opinion No. 96-23, the Commission relied on Advisory Opinion No. 95-6 in holding that a real estate appraiser could not, as a private independent businessman, appraise property that he had evaluated while in State service. Critically, it found that he was precluded by the lifetime bar because there was a "dependency" between the two appraisals. It noted how the latter appraisal was dependent upon the former.
In the present case, the Commission's review of the history of the PCB problem in the Hudson reveals that the purpose of DEC's investigation has changed and continues to change. Earlier, the agency was concerned with disposal of previously dredged contaminated soil. Now, the focus is on containing new sources of PCB pollution, and the agency is expanding its research into new methods of remediation. Unlike the contaminated landfill discussed in Advisory Opinion 95-6, which has confined boundaries permitting a step-by-step approach to a clean-up, the River's only boundary is its shoreline. The location of the PCB pollution is constantly shifting and expanding, and the approach to the clean-up is continuing to evolve. One DEC engineer compared [the former employee's] previous work to the work presently being done as "a different animal." Thus, unlike the appraisals discussed in Advisory Opinion 95-6, the work that needs to be done is not dependent upon the work that [the former employee] performed when he was employed at DEC.
The situation here is not unlike the situation presented to the Commission in Advisory Opinion No. 96-12. There, a former DEC official who had personally participated in the process for the permitting of a solid waste facility was authorized to work on an expansion of the facility. The Commission noted the distinct differences between the original and the expansion as follows:
The facility's proposed project will be based on new engineering plans and specifications. Construction of the new landfill areas can be commenced only after a new environmental review is completed and a new permit is issued. The necessary planning and design are in preparatory stages and cannot be made final until DEC gives its approval for the project. The facility's proposal is based on a new application that will bring on a new proceeding separate from the proceeding that resulted in the original permit.
In the case of the PCBs in the upper Hudson River, DEC's scientists have informed the Commission that the PSG's earlier research into the disposal of previously dredged soil in anticipation of moving it to a containment area is of little present value, and it bears small resemblance to the current dimensions of the problems presented by the Hudson's PCB contamination. Just as new engineering plans and designs were required for the expansion of the landfill, new scientific concepts and applications will be needed to deal with the current contamination of the river.
Given these developments, [the former employee] is not precluded by the lifetime bar from rendering services on the Reassessment and on PCB contamination in the upper Hudson River, as he would not be rendering services on the same transaction on which he worked while employed by DEC.
The Commission concludes that [the former employee] may perform services under a proposed contract between DEC and [the private college] with respect to PCB contamination in the upper Hudson River and the continuing phases of the EPA's Reassessment, as these services would not be part of a transaction in which [the former employee] personally participated during his period of State employment. [The former employee] may also work on PCB contamination in other geographical areas as contemplated by the contract.
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.
Evans V. Brewster
Angelo A. Costanza
Robert E. Eggenschiller
Donald A. Odell, Members
Dated: December 17, 1996
1. [The former employee] earned a Ph.D. in Geological Sciences from [ ] University in [date]. At [the university ] he served as Principal Investigator on a number of Hudson River PCB projects which were funded through several state and federal agencies and private foundations. At the time he was hired by DEC, [the former employee] was serving as a Research Scientist with the [ ] Geological Observatory. He has published extensively on the subject of PCBs and is considered one of the world's leading experts in the area.
2. "Hudson River PCBs Superfund Site," Superfund Update, Environmental Protection Agency ("EPA"), February, 1991.
4. [The former employee] has advised that his work with DEC "drew heavily" on techniques developed and refined in his years at [the university]. Most notably, he states, he contributed to the DEC method for congener-specific PCB analyses and provided critical evaluation of trace metal analyses in NY Harbor waters and wastewater inputs.
5. The total project budget to be allocated over three years is $405,000.