|Advisory Opinion No. 97-9:||Whether the lifetime bar of Public Officers Law §73(8)(a)(ii) precludes a former State employee from working on different stages of a highway project where there has been a significant break in activity.|
The following advisory opinion is issued in response to an inquiry from [ ], a former employee of the New York State Department of Transportation ("DOT"). He asks whether the lifetime bar, found in Public Officers Law §73(8)(a)(ii), precludes him from working on Stages II and III of a DOT highway project where he had personally participated in earlier stages of the project, including Stage I, which was completed in 1989.
Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") hereby renders its opinion that Public Officers Law §73(8)(a)(ii) prohibits [the requesting individual] from participating in Stages II and III of the project because of his prior participation in the same project.
The [highway project], when first proposed, included an interchange in [ ] County, denominated as the [ ] Interchange, between State Routes [ ] and [ ]. The Project Information Report for this interchange, which was the project initiation document, was submitted and approved in 1970. The final environmental impact statement for the [highway project] which included the interchange, was completed and approved in September, 1973. In April, 1977, the Design Study, Project Report IV, was completed and followed by a public hearing the next month. During those early years, [the requesting individual], although a DOT employee, was not involved with the project.
In October, 1977, the Design Recommendation, Project Report V, was approved. [The requesting individual], who was then a [ ] Engineer for DOT, states that he would have been a reviewer of the document, but he has no distinct recollection of reading it. Design approval was obtained from the Federal Highway Administration in November, 1977, but [the requesting individual] had no involvement with that approval.
In December, 1978, a consulting engineering firm was retained and a set of plans was completed. [The requesting individual] was required to coordinate the technical review of the structural plans performed by the main office, have his unit review these plans for conformance to the reference publication, and insure that the alignment and profile data agreed with those used for the highway design. His unit also reviewed highway drainage for pipes and other culvert structures 60 inches in diameter and larger.
Upon completion of the design, the project was withdrawn from the construction schedule, as projected costs exceeded twice the previous estimates and priority was given to the [highway projects] east of [city].
In March, 1984, a re-evaluation statement was submitted for a portion of the original [ ] Interchange Project, Stage I. This was a reduced scope project for which a consultant was retained to update the plans. For reasons unknown to [the requesting individual], the updated design plans were not prepared as scheduled.
In May, 1984, [the requesting individual] was appointed as the Regional [ ] Engineer, which caused him to terminate his prior duties in the [ ] Unit and [ ] Group.
In early 1985, a request for the redesign of the Stage I project was proposed, and, on July 1, 1985, preliminary engineering was approved. The request was prepared in the Regional [ ] Group under [the requesting individual's] direction. The balance of the original project, unofficially referred to as Stages II and III, was left for design and construction at a later date.
A consultant was retained by the [ ] Group, and advance detail plans were submitted to DOT's [ ] Regional Office in early November, 1986. [The requesting individual] had no involvement with these plans, as he was appointed as Regional [ ] Engineer in mid to late November, and began as Director of the Regional [ ] Group immediately after Thanksgiving.
The review of the advance detail plans, final plans and the engineer's estimate was completed in the next three months, and the plans, specification and estimate package were submitted to Albany in February, 1987. [The requesting individual] believes that he probably had some involvement with his staff in performing a review, but the extent would have been small. He would have been familiar with the scope of work and would have had general knowledge of the details included in the plans.
The project was let on May 14, 1987, with construction started in June, 1987. It was completed and accepted on January 9, 1989. During that period, the [ ] Group, headed by [the requesting individual], would have been involved through requests for plan clarification received from the construction unit. [The requesting individual] believes that there were several instances where his office requested the design consultant to clarify and/or perform some redesign work based on actual field conditions.
From 1987, when the plans for Stage I were developed and the project let, through [the requesting individual's] retirement in [date], there was no serious discussion of progressing to Stages II and III, as traffic studies showed that the improvements made in Stage I would, based on the anticipated rate of traffic growth, provide an adequate level of service for the next 15 to 20 years. There was, however, a general recognition that at some point Stages II and III would have to be built.
At this time, DOT has advertised for consultant firms to submit expressions of interest in the design of Stages II and III of the interchange project. [The requesting individual] anticipates that he will be contacted by an interested firm or that he might actively pursue employment with the consultant selected by DOT. He asks about his eligibility to work on Stages II and III.
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, part of what is generally referred to as the "revolving door" provision, 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. It prohibits a former State employee from appearing, practicing, communicating or otherwise rendering services before any State agency or receiving compensation for services rendered in any case, proceeding, application or transaction with which the former employee was directly concerned and in which he or she personally participated or which was under his or her active consideration while in State service.
The issue that must be determined by the Commission is whether §73(8)(a)(ii) precludes [the requesting individual] from working on Stages II and III of the project by virtue of his earlier participation in the project.(1)
In Advisory Opinion No. 91-12, a former State employee was involved in the design phase of a building redesign project while he was in State service. After he left, the architects and primary design consultants completely redesigned the project, spending millions of dollars. The former employee wished to participate in his private capacity in the bidding process to perform the required renovations, and he argued that the significant change in the scope of the project rendered it a different transaction. The Commission rejected his argument and held that, despite the change in the scope and nature of the construction project, it was not a different transaction from the one with which the former employee was directly concerned and in which he had personally participated. It noted that the essential nature of the transaction, the agencies involved, the property to be reconstructed and the basic concept of reconstruction had not changed, and that there was no significant break in project activity. Specifically, 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 the 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 necessary degree 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 [the requesting individual's] case, it is clear that he personally participated and was directly concerned with Stage I of the highway project, which was completed in 1989. However, this was not a project where Stage I was first designed and completed, with Stages II and III to be proposed at a later date. Rather, the initial design of the interchange project, beginning in 1970, was for the entire project. Between 1970 and 1984, work on the interchange assumed that the then proposed project would be constructed. [The requesting individual] played a role in those early years.
In 1977, he was required to review the design recommendation for the project (Project Report V). In 1978 and 1979, as a Regional [ ] Engineer, he was required to coordinate the technical review of structural plans. His unit also reviewed the structural plans for compliance with certain standards and to insure that the data agreed with those used for highway design. The unit also reviewed certain aspects of drainage. All of this work concerned the larger project then under consideration.
In 1984, following all of these efforts, the project was downsized to Stage I, and everything that followed was limited to this narrower project. However, it was always understood that Phases II and III would be built in the future.
With this history, the individual stages of the project cannot each be viewed as a separate transaction. [The requesting individual], at the early stages, worked on essentially the same project on which he now seeks to work. After 1984, he worked on only that part of the project that was then being considered. However, he, now, wishes to again, work on the larger project.
In Advisory Opinion No. 91-12, the Commission found that the changes in the scope, nature and design of the project did not make the altered project a new transaction for purposes of the lifetime bar. Here, the project on which [the requesting individual] proposes to work is similar to the original conception, which was redesigned and built to a smaller scale in the interim. As with the project considered in Advisory Opinion No. 91-12, all of the intervening changes do not make the proposed project a different transaction.
This result is also consistent with Advisory Opinion No. 95-6, where a landfill project which lasted many years was held to be the part of a single transaction despite the passage of a significant period of time, the progression from investigation to remediation and the issuance of an intervening consent order. (Contrast Advisory Opinion No. 96-12, 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 DEC proceeding for a new permit based upon a new environmental impact statement was necessary prior to construction.)
Therefore, applying the Commission's precedents, [the requesting individual] is prohibited from working on Stages II and III as he has proposed.
The Commission concludes that Public Officers Law §73(8)(a)(ii) prohibits [the requesting individual] from participating in Stages II and III of the project because of his prior participation in the same project.
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
Paul L. Shechtman, Members
Dated: April 29, 1997
1. In his request letter, [the requesting individual] recognizes that his two year bar, imposed by Public Officers Law §73(8)(a)(i), will expire in [date], and, until that time, he may not appear, practice or render services for compensation in any matter before DOT, including the proposed Stages II and III. Until [date], he is precluded from submitting his resume to DOT or preparing a response to an advertisement for design services (Advisory Opinion Nos. 90-21, 91-17). His inquiry concerns restrictions applicable after his two year bar expires.