ADVISORY OPINION 2009-5

Application of Post-State Employment Provisions to Employee of the Office of Ombudsman for Property Rights

Introduction

            The Citizen’s Ethics Advisory Board issues this advisory opinion at the request of Maryann P. Boord, an employee of the state Office of Ombudsman for Property Rights (“Ombudsman Office”), who asks that we apply the post-state employment provisions in the Code of Ethics for Public Officials (“Code”) to a proposed job opportunity. 

Background

In 2006, the Ombudsman Office was established under General Statutes § 48-50 to develop expertise in eminent-domain law, and to use this expertise as follows: to assist public agencies and property owners concerning eminent-domain matters, to mediate disputes about eminent domain, and to recommend legislative changes regarding eminent-domain powers and procedures.  It was established “within the Office of Policy and Management [“OPM”] for administrative purposes only,” and is “under the direction of an Ombudsman for Property Rights,” a gubernatorial appointee.[1]   

The current Ombudsman for Property Rights is Robert Poliner, and Ms. Boord is his executive secretary, a position that is (in her words) “borrowed” from OPM.[2]  That is: The enabling legislation for the Ombudsman Office provides for a single position—that of the Ombudsman.[3]  It was soon realized that the Ombudsman needed staff support, and because OPM had a vacant slot in its office, it requested authorization from the Department of Administrative Services “to establish and fill an Executive Secretary position in the Office of Ombudsman for Property Rights.”[4]  The request was granted, an executive-secretary position was created in the Ombudsman Office, and Ms. Boord filled it in July 2007.

The Ombudsman Office is now slated for elimination as of June 30, 2009, and Ms. Boord may therefore be seeking post-state employment.  A job opportunity has arisen at a nonprofit organization that receives funding from various state agencies, including OPM.  According to Ms. Boord, the Ombudsman Office “has not been involved with any non-profit organizations, is not privy to any confidential information of OPM, and has not entered into any contracts of any kind with any non-profit organizations.”[5]     

Questions

            In light of those facts, Ms. Boord asks two questions: (1) whether she may, after leaving state service, accept a job with a nonprofit organization that receives grants and/or loans from various state agencies; and if so, (2) whether she may, on the organization’s behalf, “engage in work activities that would have [her] directly interfacing, negotiating or otherwise doing business with such agencies including OPM.”[6]     

Conclusion

          Based on the facts presented, we conclude as follows: (1) Ms. Boord may accept a job with the nonprofit organization, even though it receives state grants and/or loans, given that she has not participated substantially in, or supervised, the negotiation or award of those state awards.  (2) She may, immediately upon leaving state service, represent her post-state employer before OPM (and any other state agency).  But in doing so, she must abide by the confidential-information and side-switching provisions in General Statutes §§ 1-84a[7] and 1-84b (a),[8] neither of which is addressed in this opinion.   

Analysis

            Ms. Boord’s first question—namely, whether she may accept a job with a nonprofit organization that receives grants and/or loans from various state agencies—triggers General Statutes § 1-84b (f), which provides, in relevant part, as follows:

No former . . . state employee (1) who participated substantially in the negotiation or award of . . . a state contract valued at an amount of fifty thousand dollars . . . or (2) who supervised the negotiation or award of such a contract or agreement, shall accept employment with a party to the contract or agreement other than the state for a period of one year after his resignation[9] from state office or position if his resignation occurs less than one year after the contract or agreement is signed. . . .[10]

This language has been “interpreted . . . to apply equally to persons who participated substantially in the negotiation or award of grants and other state awards implemented by contract.”[11]

            Here, we need not delve too deeply into the particulars of this provision, given that, according to Ms. Boord, she has not participated in any capacity in the negotiation or award of any state contract to her proposed post-state employer (i.e., the nonprofit organization).  In fact, as noted above, the Ombudsman Office “has not been involved with any non-profit organizations . . . and has not entered into any contracts of any kind with any non-profit organizations.”[12]  Based on those facts, Ms. Boord may accept a job with the nonprofit organization—regardless of whether it receives state grants and/or loans—for she most certainly has not (as is required by § 1-84b (f)) participated substantially in, or supervised, the negotiation or award of those state awards.

            Now then to Ms. Boord’s second question, which is this: whether she may, on the organization’s behalf, “engage in work activities that would have [her] directly interfacing, negotiating or otherwise doing business with such agencies including OPM.”[13]     

The answer to that question turns on our interpretation of General Statutes § 1-84b (b), the Code’s cooling-off provision, under which

[n]o former executive branch . . . state employee shall, for one year after leaving state service, represent anyone, other than the state, for compensation before the department, agency, board, commission, council or office in which he served at the time of his termination of service, concerning any matter in which the state has a substantial interest. . . .

The purpose underlying this provision is to “prevent former executive branch officials and employees from using contacts and influence gained during state service to obtain improper advantage in their subsequent compensated dealings with their former agency.”[14]

The issue here: What is Ms. Boord’s former agency?  Is it simply the Ombudsman Office?  Or is the Ombudsman Office—which, as noted above, is “within the Office of Policy and Management for administrative purposes only”[15]—part of OPM for purposes of § 1-84b (b)?  If the former (i.e., the Ombudsman Office alone is her former agency), then Ms. Boord may represent her post-state employer before OPM immediately upon leaving state service; but if the latter (i.e., the Ombudsman Office is deemed part of OPM for purposes of § 1-84b (b)), then she may not do so for one year after leaving state service.  

Recently, we catalogued the advisory opinions addressing the relationship between two state entities for purposes of § 1-84b (b).[16]  The most pertinent of these is Advisory Opinion No. 91-21, in which a former employee of the Department of Health Services (“DHS”) asked whether she was prohibited by § 1-84b (b) from representing a client before the Commission on Hospitals and Health Care (“CHHC”).  The issue was whether CHHC was part of DHS for purposes of § 1-84b (b).[17]   

            In addressing that issue, the State Ethics Commission noted that, on the one hand, all CHHC administrative matters were handled by DHS employees.[18]  (CHHC was established to be within DHS “for administrative purposes only.”[19])  But on the other hand: the legislature had established the CHHS as an “independent” commission; there was no interaction between the two entities on any substantive issues; and the CHHC drafted its own regulations and had control over its own hearings.[20]  Thus, but for the fact that DHS employees handled all CHHC administrative matters, everything else suggested that these were, in the former Commission’s words, “related but distinct entities.”[21]  It concluded therefore that they were separate agencies for purposes of § 1-84b (b), meaning that the former DHS employee was permitted to represent a client before the CHHC immediately upon leaving state service.[22] 

The relationship between the Ombudsman Office and OPM is at least as tenuous as that between CHHC and DHS.  On the one hand, the Ombudsman Office is “within the Office of Policy and Management for administrative purposes only.”[23]  But as explained in General Statutes § 4-38f, when one agency is assigned to another “for administrative purposes only,” the former shall exercise its statutory authority “independent” of the latter and without its “approval or control,” and the latter shall provide “administrative and clerical functions” for the former.  That means that the Ombudsman Office is independent of OPM from a policy perspective and is to rely on it solely for administrative tasks.

On the other hand: the Ombudsman for Property Rights (not OPM) is responsible for drafting regulations to establish mediation procedure for requests to mediate eminent-domain disputes filed with the Ombudsman Office[24]; the Ombudsman for Property Rights has control over mediation of the disputes between private property owners and public agencies concerning the use of eminent domain[25]; there is no interaction between the two state entities on substantive issues[26]; and the Ombudsman for Property Rights is listed in General Statutes § 4-5 as a “Department head,” as is the Secretary of OPM—suggesting that the departments they head are separate state entities.  Thus, though OPM handles some administrative tasks for the Ombudsman Office, the bulk of the evidence suggests that these are tenuously related but distinct state entities for purposes of § 1-84b (b).   

            Generally, the analysis would end there, and because we deemed the

Ombudsman Office and OPM to be separate state entities for purposes of § 1-84b (b), Ms. Boord, an employee of the former, would be permitted to represent her post-state employer before the latter immediately upon leaving state service.  However, we have here a few complicating factors that must be addressed.

            The first complicating factor is that Ms. Boord’s position at the Ombudsman Office is “borrowed” from OPM, and the question, as articulated in Advisory Opinion No. 2004-16, is this: whether Ms. Boord “is ‘serving’ in more than one state agency, and therefore would be prohibited [by § 1-84b (b)] from appearing before either agency . . . for the first year after leaving state service.”    

            In Advisory Opinion No. 2004-16, the State Ethics Commission concluded that a state employee can have more than one “former agency” for purposes of “application of the one-year prohibition against appearing before one’s former agency found in . . . § 1-84b (b)”—and it gave two examples:  

1.      A state employee has executed a dual-employment form, thereby “expressly acknowledge[ing] that his loyalties, as well as his time, are split between two agencies.”  Thus, “when he leaves state service, the one-year restriction of § 1-84b (b) will generally apply to both agencies.”

2.      A state employee of Agency A is loaned for a certain period of time exclusively to Agency B, and the employee’s only contact with Agency A is the receipt of her paycheck.  “[I]f the employee has had no other contact with Agency A for a year or more, then there would be no policy reason for applying the § 1-84b (b) one-year ban to Agency A.”

In Ms. Boord’s case, there is even less policy reason than there was in the second example to subject her to a one-year ban on appearing before OPM.  Her only connection with OPM is that her position at the Ombudsman Office happens to have been “borrowed” from it.  According to Ms. Boord, “I have never been employed by OPM, i.e., performed secretarial services or otherwise worked for or been paid by OPM,” and “[m]y salary has been paid from the Office of Ombudsman for Property Right’s budget.”[27]  She is not, nor has she ever been, a coworker of employees of OPM, and it would thus make little policy sense to prohibit her from appearing before that agency—particularly given that the policy underlying § 1-84b (b) is “to establish a ‘cooling-off’ period to lessen the possibility of undue influence on one’s former co-workers . . . .”[28]

            The other complicating factor involves an issue addressed in Advisory Opinion No. 1993-15, that is, how § 1-84b (b) applies when one agency is merged with another.  Specifically, a former employee of the Department of Income Maintenance (“DIM”) asked how § 1-84b (b) would apply given the merger of his former agency with other state agencies to form the new Department of Social Services (“DSS”).[29] 

The State Ethics Commission answered that, although his former agency “may no longer exist as an independent entity, if the people who made up the old agency are still employed by the state, performing the same or similar work, then the purpose of § 1-84b (b) must still be preserved.”[30]  Accordingly, “if, after the reorganization, DIM as a whole is easily discernible as a division of the new “super” agency, DSS, then the former DIM employee is prohibited from appearing before only that division of DSS.”[31]  However, if “the functions and subdivisions of DIM are intertwined with those of the other agencies involved in order to form the new agency, then the one-year ban of § 1-84b (b) will apply to DSS as a whole.”[32]

Here, it is unclear whether the functions of the Ombudsman Office will be assumed by OPM.  According to Ms. Boord, “[t]he Governor’s original proposed budget (February 4, 2009) stated the functions would be assimilated into the Office of Responsible Growth (within OPM).”[33]  Even if true, however, those functions will be performed—not by the people who made up the Ombudsman Office (i.e., Mr. Poliner and Ms. Boord)—but by current OPM employees.  Thus, the concern raised in Advisory Opinion No. 1993-15, namely, appearing before former coworkers who made up the old agency, is allayed.     

Thus, in answer to Ms. Boord’s second question, she may, upon leaving state service, represent her post-state employer before OPM (and any other state agency).  But in doing so, she must abide by the confidential-information and side-switching provisions in General Statutes §§ 1-84a and 1-84b (a), neither of which is addressed in this opinion.

By order of the Board,

Dated June 18, 2009                   

Robert Worgaftik, Chairperson