Advisory Opinion No. 2003-16
Advisory Opinion No. 2003-16
Application Of Conn. Gen.
Stat. §§1-84b(a) And 1-84b(b) To Letters Prepared By
Former Department Of Environmental Protection Employee At Request Of
Applicant With
Matter Before Department Board
Michael
Harder, Bureau Chief of the Waste Management Bureau of the Department of
Environmental Protection (DEP), has asked the State Ethics Commission to apply the
revolving door provisions of the Code of Ethics for Public Officials, Conn.
Gen. Stat. §1-79 et seq., to the following set of facts. A DEP employee retired from state service on February 1, 2002. At the time of his retirement, the employee worked
as a DEP Waste Management Regional Supervisor.
One of the businesses within his region was a car dealership. In November of 2000, the car dealership had
submitted a reimbursement application to the DEPs
Underground Storage Tank Petroleum Clean-up Account Review Board, seeking a
reimbursement of over $88,000 for site investigation and remediation costs
associated with an alleged waste oil tank release. After the employees retirement, the car
dealership produced a letter dated March
10, 2002, and signed by the employee as DEP Regional
Supervisor-Retired. The letter was
addressed to the car dealerships engineering firm and stated that the employee
was present at the car dealership the day the oil tank was removed, and saw
that there was spillage and that there were holes throughout the tank. At the request of the owner of the car dealership,
the former DEP employee wrote a second letter dated June 10, 2003, directed to that owner. In this letter, the employee described some
tests that he allegedly performed at the site at the time of the tank
excavation. The employee knew that the
letters would very likely be submitted to the DEP in support of the car
dealerships application before the Board.
Also, the employee attended at least one Board meeting at which the
application was considered, although he did not speak. Finally, the former DEP employee purchased his
vehicles from the car dealership, including a vehicle purchased in May of 2003.
The facts presented raise
significant issues under two of the Ethics Codes revolving door
provisions. First, under Conn. Gen.
Stat. §1-84b(b), a former state employee may not
represent anyone for compensation before his former agency for one year from
the date of his separation from state service.
The State Ethics Commission has consistently held that represent should be
broadly interpreted to include any activity that will alert the state agency in
question to the relationship between its former employee and the party
represented, including attending meetings at which a current agency employee
is also in attendance, submitting documents that contain the former employees
name or making phone calls to the agency to check on the status of a pending
matter. See, e.g., Ethics
Commission Advisory Opinion No. 88-13, 50 Conn. Law J. No. 8, p. 4C (8/23/88), State Ethics Commission
Declaratory Ruling No. 90-A. Applying
this rule to the facts presented by Mr. Harder, the former employees actions
in drafting letters for submission to the Board and attending a Board meeting
at which the application is being considered is representation. With regard to the issue of compensation,
under these circumstances, if the former employee received services or
merchandise from the car dealership at anything other than fair market value,
then the employee would have accepted compensation. The fact that he did not take a separate fee
for the letters would not prevent a violation of §1-84b(b),
provided that his actions took place within the first year after his
retirement.
The second
issue raised by this set of facts is whether the employees actions violate §1-84b(a). That section
prohibits a former state employee from ever representing anyone other than the
state concerning any particular matter (1) in which he participated personally
and substantially while in state service and (2) in which the state has a
substantial interest. There is no time
limit on this ban, and no requirement that the former employee receive
compensation for his representation.
Therefore, even if this employee received nothing from the dealership, he
still may not represent that entity regarding the oil tank spill without
violating §1-84b(a).
The employee has suggested that the
letters merely contain neutral information that he would have supplied to
anyone as a courtesy. The fact
remains, however, that he knew the letters would be submitted to the DEP as
part of the reimbursement claim. If a
former state employee performed tests or made an inspection as part of his state
job, that individual may certainly be subpoenaed to testify as a fact witness
at a hearing on the matter. But he may
not prepare submissions for anyone other than the state on a matter in which he
was personally and substantially involved while in state service.
See State Ethics Commission Advisory Opinion
No. 90-13, 51 Conn. Gen. Stat. Law J. No. 48, p. 4D (5/29/90) (Although Conn. Gen. Stat. §1-84b(a) prohibits any representation, whether or not for
compensation, by former state employee regarding a particular matter in which
he or she participated personally and substantially while in state service and
in which the state has a substantial interest, a former employee is not
precluded from appearing under subpoena as an uncompensated witness.)
By order of the Commission,
Rosemary Giuliano
Chairperson