Advisory Opinion No. 2004-15
Application Of Conn. Gen.
Stat. §1-84b(a§ To Dept. Of Agriculture EmployeeSeeking Post-State Employment From United Stateds Food &
Drug Administration
In addition
to her proposed duties at the FDA, Ms. Romick has
asked about the propriety of her providing technical assistance to
the DoA after she leaves
state service. She envisions that the DoA could request technical
assistance from her either through her new position at the FDA or through a
consulting arrangement with the DoA. In this regard, Ms. Romick
is concerned that -- in light of the spate of early retirements in 2003 the DoA has lost most of its experienced
environmental analysts along the The Code of
Ethics contains a number of post-state employment restrictions, including that
no former executive branch state employee shall:
(1) represent anyone other than the state,
concerning any particular matter in which she participated personally and
substantially while in state service and in which the state has a substantial
interest. Conn. Gen. Stat. §1-84b(a);
and (2) for one year after
leaving state service, represent anyone, other than the state, for compensation
before the department or agency in which she served at the time of her
termination of service, concerning any matter in which the state has a
substantial interest. Conn. Gen. Stat. §1-84b(b). In this context, the term represent
includes any action which reveals the identity of the individual, e.g., a personal appearance, phone call,
signature on a document, or designation on a firms letterhead. See Advisory
Opinion No. 92-10, 53Conn. L.J. No. 42, p. 3D ( Unfortunately,
the Code contains no exception to these two provisions for post-state
employment with another governmental entity, such as the federal
government. Therefore, to the extent
that Ms. Romicks federal job would be to review the
State of prevention of side-switching in the
midst of on-going state proceedings. Advisory Opinion No. 89-11, 50 CLJ 44, p.
5C ( Furthermore,
it is apparent that her proposed employment at the FDA will require Ms. Romick to have contact with her former agency, DoA an activity that the Commission has held would
ordinarily constitute representation of her new employer for compensation in
violation of Conn. Gen. Stat. §1-84b(b).
Nevertheless, the State Ethics Commission has recognized one limited exception
to the blanket prohibition of §1-84b(b). See
State Ethics Commission Advisory Opinion No. 88-15, 50 In the
instant case, unlike the technical implementation of a contract, the FDA
position is regulatory in nature, meaning that disputed issues could arise
between the state and the FDA over the states compliance with the NSSP.
Accordingly, the Commission finds that should
Ms. Romick accept the FDA job as presently structured,
any regulatory contact with the DoA in her new
position during the first year would constitute representation of her new
employer before her former agency for compensation in violation of Conn. Gen.
Stat. §1-84b(b). To the extent that another
FDA analyst regulating Connecticut might need to draw upon Ms. Romicks expertise of Connecticuts shoreline pollution
sources and remediation needs, Ms. Romick would be
permitted under Conn. Gen. Stat. §1-84b(b) to assist said analyst back at the
office, so long as her role in the matter is not apparent to the DoA.
See Advisory Opinion No. 92-10, 53Conn. L.J.
No. 42, p. 3D ( Ms. Romick has suggested that the FDA job might be able to be
restructured for the first year in such a way that would permit her to review
another states NSSP compliance instead of Finally,
Ms. Romick has asked about her ability to consult
with the DoA on matters
requiring her technical expertise that would not fall within the rubric of the
FDAs role. For example, because of her experience and
expertise, she anticipates the DoA
could ask her to advise it how to reopen a shellfish growing area that had
previously been closed due to pollution.
She indicates that her advice might include the types of studies the DoA should conduct in order to
explore whether, and under what conditions, shellfishing
in a polluted area could be made safe.
It would be up to the FDA to ensure that the studies, once conducted,
were adequate to provide safe shell fishing, and to ensure the shellfishermen abide by whatever conditions the state
recommends be imposed. She anticipates
that she might be paid for such consulting work advising the DoA if such consulting work is
also approved by the FDA. The
Commission has previously held that the process of negotiating consulting work
with ones former agency necessarily involves a former state employee
representing someone other than the State, i.e.,
herself, in violation of the express terms of §1-84b(b). At the same
time, however, the Commission has recognized as legitimate the former agencys
need to retain such individuals to fulfill essential functions, particularly in
an era of downsizing and privatization.
Consequently, the Commission established an exemption for such consulting
arrangements, provided the former employee received no more than her pay rate
at the time of separation from state service plus necessary expenses. In essence, the Commission reasoned that such
a limitation would prevent the former employee from utilizing her contacts at
the former agency for improper financial gain, while simultaneously allowing
the agency to continue to benefit from the individuals experience and
expertise. Advisory Opinion No. 98-21, 60
Hugh Macgill
Chairperson