|Advisory Opinion No. 96-12:||Application of the lifetime bar provision contained in §73(8)(a)(ii) of the Public Officers Law to a former State agency [senior official] who seeks to represent a party in negotiations in a permit proceeding which is related to a permit proceeding in which he had a role while in State service.|
The following advisory opinion is issued in response to an inquiry from [ ], a former [senior official] with the Department of Environmental Conservation ("DEC"), concerning the application of Public Officers Law §73(8)(a)(ii), the lifetime bar, to his proposed representation of a municipality in connection with a permit proceeding for the expansion of a solid waste facility located in the municipality. As [a senior official at DEC], [the requesting individual] was involved in the adjudicatory process that resulted in the issuance of a permit for the operation of the existing facility.
Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by §94(15) of the Executive Law, the Commission hereby renders its opinion that [the requesting individual's] involvement in the original permit process does not preclude him from now representing the municipality, as the applications for the two permits constitute separate proceedings and transactions.
[The requesting individual] was formerly [a senior official] at DEC, and is currently an attorney in private practice. He seeks to represent a town located in New York State with respect to a solid waste management facility located in the town. There is a pending proposal to expand the currently operating facility by constructing vertical and lateral additions.
Solid waste management facilities must be constructed and operated in conformance with DEC regulations, set forth in 6 NYCRR Part 360, which require that each facility obtain a permit for construction and operation. These regulations were adopted in 1988. Facilities operating at the time of their adoption were required to close if they were not in compliance and could not be expected to come into compliance. For those not then in compliance, administrative consent orders were the vehicle most often used to address the steps to be taken to allow them to continue to operate while moving to meet the requirements of the regulations.
The facility in the town [the requesting individual] wishes to represent was in operation in 1988 when the new regulations became effective. It was not in compliance. Therefore, an administrative proceeding was commenced. [The requesting individual] drafted an opinion which addressed the "transition" provision of the regulations. His opinion was submitted by the DEC Regional Attorney in the adjudicatory process. The Regional Attorney represented DEC staff in the proceeding and on all aspects of the permit process. On [date], the Commissioner, following the hearing process, issued a decision that exempted the facility from the retrofit requirements of the 1988 regulations. Based on that ruling, DEC staff and the facility negotiated an administrative consent order that addressed the groundwater contamination found at the site. An enforcement order, dated [ ], required the facility to undertake a series of remedial steps to bring it into compliance with Part 360. This order authorized the continued operation of the facility until either a permit was issued or the facility was closed under the terms of the order.
In his request, [the requesting individual] states that in the negotiations between DEC staff and the facility, he reviewed generally the proposed framework for the continued operation of the facility as presented by the Regional Attorney. That attorney, he advised, conducted the negotiations for DEC. Once the facility satisfied the conditions in the order, the Commissioner, on [date], authorized issuance of a permit based on the order and the stipulation, but subject to further public participation. The permit was finally issued on [date] to expire on [date]. [The requesting individual] states that he did not participate in the preparation or issuance of the permit.
[The requesting individual] now wishes to represent the town in which the facility is located with respect to a new application to expand the facility into two areas not previously permitted by the 1993 permit. The facility submitted its expansion application to DEC on [date]. Because it must prepare a draft environmental impact statement, its application is viewed as incomplete by DEC. [The requesting individual] describes the application as encompassing an area outside the original "footprint" of the existing landfill, i.e. a lateral expansion. The application also seeks to expand the landfill "vertically" in an area not previously permitted. The Town has authority to decide whether or not to allow this new construction to occur. It is likely that the town and facility operator will enter into negotiations to make certain that local concerns are satisfied. In addition, the Town may become involved in the permit process before DEC.
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.(1)
To respond to [the requesting individual's] request, the Commission must determine whether the present application for expansion is the same "case, proceeding, application or transaction" as the prior application.(2) To make this determination, the Commission is guided by several of its previous Advisory Opinions. In Advisory Opinion No. 95-6, a former DEC staff level engineer asked the Commission to consider whether the lifetime bar prohibited him from performing engineering services with respect to the clean-up of the [city] landfill. The engineer had performed investigative services at an early stage of the project while he was in State service. The Commission undertook a detailed examination of the history of the landfill. It 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 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 the ultimate goal were unchanged.
In Advisory Opinion No. 95-11, the Commission considered a proceeding before the Public Service Commission ("PSC") that was being conducted in several distinct "phases," with each culminating in one or more specific actions by the PSC. The proceeding was broad in scope, involved 60 active parties, and was anticipated to last several years. The question presented was whether the proceeding, which had been divided into several distinct phases, could be defined as a series of separate transactions for purposes of the lifetime bar. Relying upon the statutory language, which bars the rendering of services in the same "case, proceeding, application or transaction"(emphasis added), the Commission held that the same proceeding cannot be divided into separate transactions. If an individual participated at any stage of a proceeding while in State service, he or she was held to be barred from future participation in the entire proceeding.
Both of these opinions, however, are distinguishable from the present matter. Unlike the [city] landfill, the proposed expansion of the town landfill in which [the requesting individual] would be involved is not essentially the same in nature as the transaction in which he was involved while in State service. The subject, purpose and goal of the current application is expansion, whereas the subject of the earlier matter was whether or not the existing facility should be permitted to continue to operate, and if so, under what conditions.
From a procedural perspective, the current application is quite different from the proceeding described above which led to Advisory Opinion No. 95-11. There, the Commission considered continuation of a single proceeding, divided into "phases." Here, the application for vertical and lateral expansion is separate from the application in which [the requesting individual] was involved. The proposed expansion is subject to a new environmental review under DEC's administrative rules, and subject to independent public review under the Uniform Procedures Act and the State Environmental Quality Review Act. A new draft environmental impact statement is required to assess the potential significant adverse environmental impact of the expansion, which statement must consider factors different from those presented by the existing and ongoing landfill operations. In addition, the current application is required to set forth its own distinct engineering and design specifications. The new application is not dependent upon the prior permit nor is it a natural or expected continuation of the former permit and transaction. All of these factors demonstrate the separate and independent nature of the new project.
The proceeding for the proposed lateral and vertical expansion of the landfill is similar to the proceeding the Commission considered in Advisory Opinion No. 95-7, where it held that in successive utility rate cases before the PSC involving the same utility, each case should be considered a different proceeding for purposes of the lifetime bar. The Commission noted that the PSC, in considering whether to change rates for a specified period, must re-estimate every component of a utility's revenue requirements for each new period.
Similarly, in Advisory Opinion No. 95-15, the Commission held that the preparation of each new "cost trending index" used by the Office of Real Property Services to trend historical cost information to current assessment year cost levels constitutes a new and separate transaction for purposes of the lifetime bar, as each such index "requires separate index research and preparation on the part of the supplier." The Commission specifically stated that these biannual submissions "do not modify existing indices and are not dependent on any previous index; rather, they are completely recalculated."(3)
In the context of the Medicaid rate-setting process, the Commission, in an informal opinion, held that while the process consists of a relatively constant methodology by which rates are annually established, multiple variables (e.g. a facility's volume of clients, case mix, new programs, staff and services) differ from year to year. The Commission concluded that each setting of a Medicaid rate represents a new and separate transaction each year.
In the matter now before the Commission, the facility in question has satisfied the conditions of the 1993 enforcement order issued by the DEC Commissioner and, in accordance with its terms, the order has expired. The facility is now free to fill the landfill with solid waste up to the design contours authorized in the original permit.
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. Therefore, as in Advisory Opinion Nos. 95-7 and 95-15, the new proceeding is a new transaction.
The Commission concludes that the lifetime bar does not preclude [the requesting individual] from representing a municipality in connection with a permit proceeding for the expansion of a solid waste facility located in the municipality where he was involved in the adjudicatory process which resulted in the issuance of a permit for the existing facility, as the applications for the two permits constitute separate proceedings and transactions.
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
Evans V. Brewster,
Angelo A. Costanza,
Donald A. Odell, Members
Robert E. Eggenschiller, Member
Dated: May 28, 1996
1. There is also §73(8)(a)(i), which provides for a two year bar. However, the Commission need not consider the two year bar since [the requesting individual], with his request for this opinion, has requested an exception pursuant to §73(8)(b)(ii), which exception covers his representation of the Town. The Commission has approved his application.
2. [The requesting individual] also argues that based on the Commission's prior opinions, he did not personally participate in the prior application. For purposes of this opinion, the Commission assumes, without deciding the issue, that he personally participated. Given the Commission's analysis, it is not necessary to resolve this question.
3. Advisory Opinion No. 95-15.