|Advisory Opinion No. 96-17:||Whether addition of a new project to a proceeding in which a former employee participated renders it a new proceeding for purposes of the lifetime bar contained in Public Officers Law §73(8).|
The following advisory opinion is issued in response to a request by [ ], a former employee of the New York State Department of Environmental Conservation ("DEC"), concerning the application of the lifetime bar of the Public Officers Law in connection with his proposed services on behalf of [a private client] in its representation of a party concerned with [a utility's] relicensing application for its [Project D].
Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") hereby renders its opinion that [the requesting individual] may not appear before DEC or render services for compensation on behalf of [the private client] with respect to the [Project D] application because the application is part of a larger transaction in which [the requesting individual] personally participated during his period of State employment.
[The requesting individual] received a letter, dated [ ], 1996, from [DEC Counsel] asserting that [the requesting individual's] participation in a meeting concerned with the relicensing of [the utility's] [Project D] may have violated the lifetime bar contained in Public Officers Law §73(8). In response, [the requesting individual], a former DEC employee, contacted the Commission and requested that it help "to put this matter . . . behind us." With this opinion, the Commission offers guidance and to both DEC and [the requesting individual].(1)
While [the requesting individual] was employed by DEC, [the utility] began the lengthy process of applying for the relicensing of several of its hydroelectric plants on or near the [ ] Reservoir: [Projects A, B and C]. Pursuant to the Clean Water Act, 33 USC §1341, an applicant seeking a license from the Federal Energy Regulatory Commission ("FERC") to operate a hydropower project must first obtain a Water Quality Certificate ("401 Certification") from the state in which it is located.(2) In 1985, [the utility] began the process by consulting with DEC and instituting the preparation of environmental studies.(3) Upon completion, these multi-volume studies became part of the application for a 401 Certification and, upon approval, are to be included in the application to FERC.
In 1993, [ ] years after [the requesting individual's] retirement,(4) DEC denied the application for a Water Quality Certificate for [Projects A, B and C]. [The utility] then requested a hearing before a DEC administrative law judge to review those denials. After an initial hearing, the judge stayed the proceedings to allow the parties to reach a negotiated settlement. During the course of the negotiations, [the utility] suggested that, to be comprehensive, [Project D], another project on the [ ] River in close proximity to [Project A], be included in the discussions. DEC agreed even though that facility was not due for relicensing until the year 2002.
When the [Project A] application for 401 Certification was completed, a significant portion of the material submitted pertained to downriver fishing, water quality, and river recreation. DEC officials have advised the Commission that the [Project A] studies were concerned with three miles of the [river] below both [Project A] and [Project D]. The data and conclusions found in these studies will form a significant portion of the downstream effects section of the [Project D] 401 application. That application will also contain many references to other portions of the [Project A] application.
An application for 401 Certification begins with a power company's issuance to the public of an Initial Consultation Document ("ICD"), which includes the proposed scope of the studies the company anticipates performing and its FERC application. The application is a multi-volume document which includes, among other things, detailed engineering data, fish studies, and recreational and facility usage data. The public is given sixty days to respond to the ICD with areas of additional concern that may need to be studied. The power company may call a meeting of interested parties to discuss the parameters of the ICD prior to its finalization. It was such a meeting for [Project D], held in [ ], 1996, that [the requesting individual] attended, and which caused DEC to question whether his participation is permissible under the lifetime bar.
In presenting DEC's objection, [DEC Counsel] describes [the requesting individual] as the former [senior official] of DEC's [ ] Section, the DEC unit responsible for [ ]. According to [DEC Counsel], DEC records indicate that [the requesting individual], while employed by the agency, had primary responsibility for [ ] of hydropower projects. [DEC Counsel] asserts that [the requesting individual] "supervised all staff work on hydropower projects and played a direct role in [Projects A, B, C, and D]."(5) While alleging that [the requesting individual's] attendance at the meeting concerning [Project D] violated the lifetime bar, [DEC Counsel] also advised [the requesting individual] that the continued involvement of [the private client], was "problematic," given [the requesting individual's] role as a principal of that entity, and that DEC would have no choice but to refer this matter to the Commission if [the requesting individual] were to choose to continue participating in the ongoing [the utility's] hydropower relicensing process.
In response, [the requesting individual] advised the Commission that [DEC Counsel's] "overstatement" of his former role with DEC was "misleading." He insisted that as a DEC employee he did not have the authority to initiate or dictate the policy level decisions that would "significantly alter the outcome of a program." [The requesting individual] advised that, as a [ ] Analyst for DEC, his primary responsibility was to ensure that the Department's involvement "in a very complex integrated federal process progressed in accordance with established procedural time frames." He noted that FERC is the agency with sole responsibility for hydropower licensing, and asserted that:
. . . I did not modify DEC's environmental review procedures - I did not formulate policy - I did not, with the exception of aesthetic analysis, provide technical input - I did not have the authority to alter or ignore the technical contributions of another Division or Agency and, my supervisory authority was limited to overseeing the daily duties of three other people in the Project Review Section. Several rejections to reclassify my position to Management Confidential would seem to support the above job description.
[The requesting individual] noted that [Project D] is not due for relicensing until the year 2002, and that the meeting he attended was a preliminary meeting which was initiated and chaired by [the utility] prior to the submission of any application for certification or license for that Project.
[The requesting individual] was, in fact, a [ ] Analyst [ ], charged with oversight of the Department's involvement with hydropower construction and licensing. He was [ ] manager for the [Project A] 401 Certification application and was intimately involved with the downstream studies.
In conversation with the Commission's staff, [the requesting individual] explained that he was coordinator and facilitator for the various DEC regions and the hydropower community, and any DEC contact with the hydropower industry had to go through him. [The requesting individual] described himself as DEC's "Hydro Clearinghouse," adding that DEC gave him the title [ ] of the Project Review Section to bolster his credibility with the hydropower community.
[The requesting individual] stated that his involvement in the [ ] projects began when [the utility's] application for Water Quality Certification for its Project B] and [Project A] hydropower projects was directed to his unit. [The requesting individual] requested and received input from the various interested DEC Divisions and Regions, and he conveyed those concerns to [the utility] in a letter signed by him. [The utility] responded to [the requesting individual], who routed the response to the various interested DEC departments.
[The requesting individual] advised the Commission that it was his job to ensure that the differing concerns of the various DEC Regions were meshed into a comprehensive position for the Department. Without question, his name appears on numerous documents pertaining to the [the utility] application. He argues, however, that he was not designated as a policymaker and did not have ultimate decision-making authority over the process.
Finally, he argues that the relicensing of [Project D] was not under consideration by DEC during his State employment, and that no application has yet been filed with either DEC or FERC, although DEC and [the utility] have agreed to include it in the process.
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.
The first question for the Commission is whether [the requesting individual] personally participated in [Projects A, B and C] while in State service. Despite his arguments that he had only a limited role, his work on these projects was clearly more than tangential (See Advisory Opinion Nos. 91-12, 95-41). He admitted that he was the coordinator of the agency's efforts with respect to [the utility's] applications, and he corresponded regularly with the power company. Thus, as to these applications, he is barred from appearing before DEC or from rendering services for compensation in relation to any of them.(6)
This leaves [Project D], the application that was added to the process after he left DEC and as to which no application has yet been filed with either DEC or FERC. The question is whether this project is so intertwined with the other applications that it has become a part of the larger transaction.
In Advisory Opinion No. 91-12, the Commission found that the lifetime bar prohibited a former employee from bidding on a construction project on which he worked while in State service, the scope and nature of which was significantly altered after he left the State. 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. . . .
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 [a Town] landfill, a process that had taken over eleven years. The engineer performed investigative services at an early stage 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, the passage of a significant period of time, the progression from investigation to remediation, and the issuance of a new consent order. The Commission found that the essence of the "transaction" remained the same.
While these opinions are not squarely on point with regard to the situation presented here, they do serve to guide the Commission's approach. In both opinions, a narrow project had been expanded or changed over time; yet, the central purpose of each project remained the same and the transaction was held to be the same. Here, while each application may be separate, they all relate to projects along the [ ] River. [Project D] has been added to the process even though its license has not yet expired precisely because it is so closely related to the other individual projects.
As noted, it is especially closely related to [Project A]. Not only are the two in close proximity, but the studies used for [Project A] will serve as the major portion of the study for [Project D]. Since [the requesting individual] worked on [Project A], he would, in essence, be working on the same matter on which he worked while in State service. This is exactly what the lifetime bar is intended to prohibit. Thus, [the requesting individual] may not appear before DEC on the [Project D] application.(7)
Finally, [the private client's] continued involvement in the process is not prohibited by the Public Officers Law.(8) While [the requesting individual] is disqualified from rendering services on the relicensing of the [the utility] projects, the bar does not extend to the entire organization. However, he may not participate or share in the net revenues.
The Commission concludes that [the requesting individual] may not appear before DEC or render services for compensation on behalf of [the private client] with respect to the [the utility's] application for the relicensing of its [Project D] because the application is part of a larger transaction in which [the requesting individual] personally participated during his period of State employment. As long as [the requesting individual] recuses himself from any such participation and does not share in the net revenues generated by such representation, [the private client] may represent any party in the process.
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.
Angelo A. Costanza
Robert E. Eggenschiller
Donald A. Odell, Members
Dated: July 18, 1996
1. [The requesting individual's] appearance at a public meeting was not in violation of the lifetime bar, as appearances at such meetings are permissible (Advisory Opinion No. 93-18). This opinion is intended to aid [the requesting individual] in avoiding violations in the future.
2. The standards for a certification are found in the Clean Water Act §401; hence, "401 Certification."
3. Since the 401 Water Quality certification remains pending, FERC has issued interim annual operating licenses to [the utility's] facilities.
4. [The requesting individual] was in State service [for 25 years].
5. [DEC Counsel's] assertion that [the requesting individual] supervised DEC's work on [Project D] refers to his responsibility as Project Manager for ongoing problems at that facility which are unrelated to the present 401 Certification proceedings. As previously noted, the proceedings did not include [Project D] until after [the requesting individual] left State service.
6. His not having been designated as a policymaker does not alter the conclusion, as §73(8)(a) applies to all former State employees regardless of their prior position (See Advisory Opinion No. 91-17).
7. [The requesting individual] could serve without compensation in any FERC proceeding held after the issuance of the DEC Water Quality permit and DEC involvement in the process has ended. The lifetime bar prohibits (1) appearing, practicing, communicating or rendering services before any State agency, and (2) the receipt of compensation for services rendered anywhere. Since FERC is not a State agency, [the requesting individual] would not be barred by the first clause, and, if his services were rendered pro bono, he would not be barred by the second clause.
8. [The requesting individual] described [the private client] as an organization of retired State and industry executives who are hired by private groups to "interface" between those groups and State and Federal government entities in permit or other government proceedings.