|Advisory Opinion No. 95-6:||Application of the lifetime prohibition contained in Public Officers Law §73(8) to a former employee of the Department of Environmental Conservation.|
Pursuant to the authority vested in it by Executive Law §94(15), the State Ethics Commission hereby renders its opinion that:
(1) [The requesting individual] may not render services on behalf of his employer with respect to the City of [ ] municipal landfill because those services are a part of the same transaction as that with which he was directly concerned and personally participated during his period of State employment; and,
(2) [The requesting individual's] question concerning performing compensated services pursuant to consent orders on which he worked while a DEC employee when the orders have subsequently been amended cannot be answered because of the lack of specific information provided to the Commission.
The [city] landfill
[The requesting individual] asks the Commission to consider whether the lifetime bar permanently prohibits him from performing engineering services with respect to the clean-up of the [city] municipal landfill, which is the subject of a consent order. He advised that as a DEC employee he was assigned to this landfill. Its history is as follows:
Early in [ ], DEC began discussions with the City of [ ] concerning problems with its [ ] landfill. The size of this landfill made it a particularly important concern for the State. Discussions between the State and [the city] continued until [ ], when the two parties entered into an interim consent order in federal court. [The requesting individual] was involved in these discussions. The agreement enabled the City to be eligible for financial assistance under ECL §27-1313(5)(g),(1) which allows the State to grant funds from the hazardous waste remedial fund to qualified local municipalities for up to 75% of eligible remedial costs.
The [ ] consent order was limited in its scope. It required that the City and the State undertake a remedial investigation and feasibility study and issue reports on the findings.(2) In conjunction with the remedial investigation, the City also agreed to conduct a feasibility study.(3) Both the remedial investigation report and the feasibility study were to be available to the public for review and comment. No further action was required under the order.
In [ ], [the requesting individual] was named Project Engineer. After the [ ] agreement was signed, he was assigned duties as DEC's point of contact with the City and was authorized to make most of the State's decisions pertaining to work being performed at the landfill. Decisions within [the requesting individual's] range of responsibility included type, location and method of sampling, methods of analysis, parameters, oversight of any and all work at the site, monitoring area home water supplies and consulting with appropriate DEC and other State personnel. Subsequent to [the requesting individual's] departure from State service in [ ], the remedial investigation report and feasibility reports were issued in the fall of [ ] as per the consent order.
As required under 6 NYCRR 375-1.10, the DEC reports established goals for the remedial process and evaluated remedial alternatives. These alternatives were assembled to provide options with respect to cost and their effectiveness at reducing the human health environmental risk presented by the landfill. By letter dated [ ], DEC advised the Municipality that both it and the New York State Department of Health had determined that the Remedial Investigation and Feasibility Study reports submitted were acceptable and were being used by the State to develop a proposed remedial action plan ("PRAP") for public review and comment.
The State issued a PRAP in [ ]. It described the remedial alternatives considered for the site, identified the alternative preferred by DEC, and provided the rationale for this preference. The PRAP solicited public comments pertaining to all of the remedial alternatives evaluated, as well as the preferred alternative. After holding a public hearing on the PRAP in [ ], and receiving other comments on the PRAP, the State issued a Record of Decision ("ROD") on [ ]. The remedial program set forth in the ROD called for site regrading, draining a pond, construction of stormwater retention basins, construction of a landfill cap, extension of city water to individual users, building a security fence, land use restrictions and continued environmental monitoring. These recommendations were agreed to by the city and incorporated into a new consent order signed by all parties on [ ].
The terms of the new consent order require that the city hire an engineering firm for the preparation of the work plan and remedial design for implementation of the remedial alternative selected in the ROD.
As required by the order, the city issued a request for bids for the engineering work. Six firms responded, and [the private contractor], [the requesting individual's] current employer, was selected. [The requesting individual] asks that he be permitted to participate in this aspect of the project.
[The requesting individual] also noted that during the course of his DEC employment, he performed services pursuant to consent orders governing other hazardous waste sites. Subsequent to his departure from State service, other or additional actions were required of the parties to those orders. Amended consent orders or new orders that incorporated and modified the previous orders were signed. [The requesting individual] requests that the Commission consider whether he is barred from performing the new work required by the amended consent orders.
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 appearances or the rendering of services pertaining to transactions in which they were directly concerned and personally participated, or which they actively considered while in State service.
This subdivision (§73(8)) is generally referred to as the "revolving door" provision, for 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.
The [city] landfill
In the instant case, the Commission must decide whether [the requesting individual] is permanently prohibited by the lifetime bar from providing engineering services pursuant to a contract between his private employer and the City of [ ] involving the [city] municipal landfill. As noted above, while a State employee, he personally participated in the preapplication process for Title 3 assistance to the City of [ ] and acted as the DEC point of contact for the remedial investigative work, which was not completed until after he left State service.
The Commission has held that bills introduced in the same or even in different legislative sessions may constitute the same transaction when they affect the same or substantially the same population and issues.(4) That holding was based on an earlier Commission opinion which involved a former employee who sought to bid on a construction project on which he worked while in State service, the scope and nature of which had been altered after he left the State. In that case the Commission stated:
The fact that the exact design of that project has changed does not change the essential nature of the transaction. . . . It is like an amendment to an existing contract which does not change the nature of the transaction but merely modifies its terms. . . .(5)
In the present matter, [the requesting individual] informed the Commission that he personally participated in the Title 3 EQBA process for the City of [ ] and had extensive responsibilities for the landfill while a DEC employee. Although a new consent order executed after he left the State requires additional action on the part of the State and the City to complete remediation of the landfill, the Commission finds 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. It addresses the same landfill's cleanup as originally studied when [the requesting individual] was the Project Engineer. Therefore, the Commission concludes that [the requesting individual's] performance of services as an environmental engineer pursuant to the amended consent order would constitute his rendering services on a transaction on which he worked while in State service. It is a transaction with which he was directly concerned and in which he personally participated, as his activities on behalf of [the private contractor] would involve the same basic facts, parties and information with which he was involved as a DEC employee.(6)
Other amended consent order services
Finally, [the requesting individual] noted that during the course of his State employment he participated in the development and application of consent orders pertaining to several hazardous waste sites other than the [city] site. Following his termination from State service, other or additional actions have been required of the parties to those consent orders. Amended consent orders or new orders that incorporated and modified the previous orders were signed. [The requesting individual] asks whether he is prohibited by the lifetime bar from participating in the new work required by the amended consent orders.
Questions involving application of the lifetime bar must made on a case-by-case basis. The determination of whether post State employment work on amended or new consent orders involves the same or a different transaction from one on which the individual worked while in State service requires a detailed analysis of the services performed both before and after the employee's departure from State service. Other projects may be quite different from [the city]. The specific facts of each matter are critical to the Commission's analysis. Therefore, the Commission is unable to formulate a "general" rule governing [the requesting individual's] activities in the absence of more specificity. Each situation must be considered separately.
(2) [the requesting individual's] question concerning performing compensated services pursuant to consent orders on which he worked while a DEC employee when the orders have subsequently been amended cannot be answered because of the lack of specific information provided to the Commission.
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.
Joseph M. Bress, Chair
Angelo A. Costanza,
Robert E. Eggenschiller,
Donald A. Odell, Members
Dated: March 7, 1995
1. Environmental Conservation Law Title 3 Bond Act of 1986.
2. Defined in 6 NYCRR Part 375-1.3(t), a remedial investigation is ". . . a process undertaken to determine the nature and extent of contamination. The remedial investigation emphasizes data collection and site characterization, and generally is performed concurrently with the feasibility study. It includes sampling and monitoring, as necessary, and includes the gathering of sufficient information to determine the necessity for, and the proposed extent of, the program and to support the evaluation of proposed alternatives."
3. Defined in 6 NYCRR Part 375-1.3(j), a feasibility study is ". . . a study undertaken to develop and evaluate options for remedial action. The feasibility study emphasizes data analysis and is generally performed concurrently and in an interactive fashion with the remedial investigation, using data gathered during the remedial investigation. The remedial investigation data are used to define the objectives of the program, to develop remedial action alternatives, and to undertake an initial screening and detailed analysis of the alternatives. The term also refers to a report that describes the results of the study."
4. See Advisory Opinion No. 92-20, p. 8.
5. See Advisory Opinion No. 91-12, pp. 7-8.
6. This conclusion does not preclude [the private company] from performing the services required by the contract as long as [the requesting individual] does not share in the net revenues received by the contractors. See Public Officers Law §73(10).