|Advisory Opinion No. 99-06:||Application of the lifetime bar restrictions of Public Officers Law §73(8)(a)(ii) to a former employee of the New York State Department of Transportation who seeks to work on a contract to provide later generation road weather information systems to his former agency.|
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 asks whether the lifetime bar restrictions of Public Officers Law §73(8)(a)(ii) would preclude him from becoming involved with a Request for Proposals ("RFP") for road weather information systems to be awarded by DOT. While employed at DOT, [the requesting individual] had personally participated in preparing a draft RFP for an earlier generation of systems.
Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") renders its opinion that the lifetime bar does not prohibit [the requesting individual] from working as a project manager for a subcontractor of one of the proposers responding to his former agency with respect to an RFP to acquire road weather information systems because the transaction is not the same as one on which [the requesting individual] personally participated while in State service. The current RFP is different because it has vastly changed in scope, because of technological advancements, and because federal standards that were not in place at the time of the draft RFP have subsequently been established.
[The requesting individual] retired from DOT in [ ] 1996 having served in the title of [ ]. His expertise involved snow and ice removal from State roads.
During the early 1990's, DOT was reconsidering its policy of being reactive to snow and ice conditions which traditionally involved the application of salt to melt snow and ice. Airports and European countries had already started to adopt strategies based on technological advances. These advances foster a pro-active system that is initiated upon the assessment of various factors such as road and air temperature and other climatic conditions. These technological changes permit those responsible for road conditions to take alternative approaches, such as applying chemicals to increase the road surface temperature before any precipitation falls. A pro-active system is considered both safer and more cost effective than the laying of salt.
While DOT's Region 4 (Rochester) has already begun some pro-active measures utilizing its capital funds, DOT was looking to initiate a Statewide system. As there were wide-ranging implications to the shift in policy, DOT sought Division of Budget ("DOB") approval for funding. [The requesting individual] worked on the narrative component of DOT's proposal to DOB but, as he was not an expert in telecommunications, other engineers at DOT were responsible for developing the technical specifications of the proposal. The proposal submitted to DOB was later developed into a draft RFP for the acquisition of road weather information systems. That draft RFP had not been forwarded to DOT management for approval before [the requesting individual's] departure.
After [the requesting individual] left DOT in [ ] 1996, work continued on the draft RFP. Input was obtained, the project was expanded in scope (as discussed below), the project managers were told to examine what other States were doing, there were delays, and allowances for major changes in technology were incorporated into the revised RFP. In March 1998, a draft RFP was first issued to the public, and DOT solicited input from vendors at various bidders' conferences. The draft RFP was again amended, and the final RFP was issued in early 1999.
At the time that [the requesting individual] worked on the draft RFP for Statewide road weather information systems, the systems were propriety in nature, meaning that each company sold and serviced its own product. Since then, the technology has advanced, and generic systems have been developed. In addition, since [the requesting individual] left DOT, the federal government has established federal standards for road weather information systems which have been incorporated into the current RFP. The federal standards had not been developed at the time of [the requesting individual's] departure from DOT, but were issued in 1998.
In addition, [the requesting individual] cites many changes between the draft RFP on which he worked and the current RFP. The sites for implementing the systems were not known in 1996 and, according to DOT, have yet to be identified. The final RFP requires equipment two generations more advanced than the 1996 draft required. DOT agrees with this assessment as the new systems provide for, among other items, internal calibration and certification of sensors. The new systems are also "weather dry" systems while the earlier ones were not activated unless there was precipitation. The new systems are now referred to as "expert" systems in that a computer program will advise road managers what actions to take. The 1996 draft RFP reflected that, at the time, the systems were based on telephone communications while the 1999 draft takes into account that the newer generation systems are now wireless with backup capability.
At the time of 1996 draft, there was no thought of opening the benefits of the RFP to local governments, the Thruway Authority or other transportation related authorities. The Office for Technology ("OFT"), which did not exist in 1996, has since mandated that DOT extend the benefits of the RFP to other public entities.
Due to the changes in scope brought on by OFT's mandate, the technological changes that have taken place since 1996, and the establishment of federal regulations, the RFP has gone from less than 100 pages of specifications to over 700.
Public Officers Law §73(8)(a)(ii) provides:
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.
The above provision, known as the "lifetime bar", sets 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 lifetime bar prohibits former State officers and employees from rendering services for compensation in relation to any case, proceeding, application or transaction with respect to which they were directly concerned and in which they personally participated during the period of their State service, or which was under their active consideration during that period.
The issue before the Commission is whether the draft RFP that [the requesting individual] worked on in 1996 has been so altered due to changes in scope, the establishment of federal standards and technological advances, that the transaction, itself, is no longer the same. Because of these changes, DOT staff believes that whatever insider information [the requesting individual] might have acquired as a result of his DOT work on the draft RFP is no longer useful for a bidder on the current RFP.
The Commission has dealt with the issue of whether a transaction has subsequently changed to the point of being a "new" transaction on numerous occasions. Thus, in Advisory Opinion No. 91-12, the Commission considered a matter of whether a building improvement project was the same transaction for purposes of the lifetime bar. In that Opinion, the former employee worked on an improvement design that was basically complete at the time he left State service. After his departure from State service, the primary design consultants spent millions of dollars in redesign. In concluding that the project was still the same transaction as the one on which the individual was involved while in State service, the Commission stated:
The changes in the scope and nature of the improvements which occurred after the former employee left State service do not render the project a different transaction from the one with which the former employee was directly concerned and in which he personally participated during the period of his employment. The fact that the exact design of that project has changed does not change the essential nature of the transaction as a reconstruction of the passenger terminal at [the building]. The State agencies, the subject property and the basic concept of reconstruction have not changed to a degree necessary to render this project a different transaction in order to avoid application of the lifetime bar. Despite the representation that the project has changed significantly and other design consultants have been paid millions of dollars to redesign the project, the Commission finds that the "transaction" in which the former employee was involved continues to exist; the transaction is the continuing reconstruction of the passenger areas of [the building].
In Advisory Opinion No. 95-6, the Commission precluded an engineer who had worked on the early stages of a major landfill project while working for the Department of Environmental Conservation from working on the remedial aspects of the project. While in State service, he worked on the investigation of the problems of the landfill and other aspects, but during those years, the project did not progress to the remedial stage. After he left State service, a new consent order was signed which set forth the remedial requirements. He sought to work on the remediation to be implemented pursuant to the consent order. The Commission held that the lifetime bar precluded this work, and said that "despite all the intervening events, the essence of the transaction -- its subject and purpose, the parties interested and affected, and the ultimate goal -- remains constant".
In Advisory Opinion No. 97-9, the Commission barred a former DOT employee from working on the latter phases of a transaction -- a highway interchange project -- where the first stage had been completed almost ten years earlier and the later phases had been put on hold due to budgetary constraints. The Commission held that the project on which the requesting individual sought to work was similar to the original conception which was redesigned and built to a smaller scale in the interim. The subject matter underlying these three opinions dealt with altering existing buildings or highways.
In Advisory Opinion No. 96-12, the Commission came to the opposite result where the construction of vertical and lateral additions to an established solid waste management facility was held to be a separate transaction from the completed facility where new engineering plans and specifications were required and a new agency proceeding for a new permit based upon a new environmental impact statement was necessary prior to construction. There, the requirement of a new proceeding and permit tipped the balance in favor of the finding of a different transaction.
In a related opinion, Advisory Opinion No. 96-24, the Commission analyzed circumstances involving a former employee who had amended certain regulations while in State service. There, the lifetime bar precluded the former employee's working on new amendments to the same regulations. However, the Commission noted:
In other situations, where she wrote the initial regulations, it is possible that the current regulations would have so changed from those on which the employee worked while in State service that the two would not be the same for purposes of the lifetime bar. . . .
Such is the situation here. While the concept of acquiring Statewide road weather information systems has remained the same, there have been substantial changes from the 1996 draft to the 1999 final RFP. The parties have changed due to OFT's mandate that DOT include local governments, the Thruway Authority and other public highway entities in the RFP. The type of system that DOT hopes to acquire has also changed due to technological advances, and the specifications now require that the system must comply with federal standards that did not exist in 1996. Finally, the Commission notes that the RFP document has gone from under 100 pages of specification to over 700. Although the number of pages is not dispositive, it reinforces our conclusion that the new RFP is significantly different from what came before. Considering all of the factors, the Commission concludes that the earlier RFP and the current one are different transactions, and [the requesting individual] did not participate in the current transaction.
The Commission concludes that the lifetime bar does not prohibit [the requesting individual] from working as a project manager for a subcontractor of one of the proposers responding to his former agency with respect to an RFP to acquire road weather information systems because the transaction is not the same as one on which [the requesting individual] worked while in State service. The current RFP is different because it has vastly changed in scope, because of technological advancements, and because federal standards that were not in place at the time of the draft RFP have subsequently been established.
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.
Paul Shechtman, Chair
Robert J. Giuffra, Jr.
Henry G. Gossel
O. Peter Sherwood, Members
Dated: April 14, 1999