Advisory Opinion No. 1997-13

Application Of Conn. Gen. Stat. § 1-84b(d) To The Former
Commissioner Of The Department Of Transportation

William Burns, former Commissioner of the Department of Transportation (DOT), has asked the State Ethics Commission to issue an advisory opinion responding to the following three questions:

(1) whether Connecticut General Statutes § 1-84b(d) bars the acceptance of employment from one year after the last qualifying contract was signed, as opposed to one year from the date of resignation; (2) whether the potential future consummation of a contract, postdating Mr. Burns’ resignation from state employment, will have any bearing upon the his ability to procure employment under s1-84b(d); and (3) whether a supplement to an existing contract, the supplement having been signed after Mr. Burns’ resignation from state employment and the existing contract having been signed prior to his resignation from state employment, will have any bearing upon the his ability to procure employment under § 1-84b(d)?

Conn. Gen. Stat. § 1-84b(d), states that: no former public official or state employee who participated substantially in the negotiation or award of a state contract obliging the state to pay an amount of fifty thousand dollars or more, or who supervised the negotiation or award of such a contract, shall accept employment with a party to the contract other than the state for a period of one year after his resignation from his state office or position if his resignation occurs less than one year after the contract is signed.

By way of relevant background, Mr. Burns resigned as Commissioner of the DOT on February 1, 1997. He is now considering accepting employment with Clough, Harbour and Associates (Clough, Harbour). Prior to his resignation, the last contract entered into by the DOT and Clough, Harbour pertained to a bridge scouring project, and was signed by the DOT on September 26, 1996. This contract was, in actuality, a third supplement to a contract originally signed in 1993.

Additionally, there are two contracts currently under negotiation between the DOT and Clough, Harbour; one a bridge scoring mitigation program and the other relating to the Norwich Transportation Center. No contract has been signed with respect to either project.

Finally, there was a contract between the DOT and Clough, Harbour regarding overhead sign inspection. This agreement was signed by the DOT on August 24, 1995 and by Clough, Harbour on May 19, 1995. Mr. Burns has reason to believe that the DOT may now approach Clough, Harbour with respect to a supplemental contract for additional overhead sign inspection. As of this date, however, no supplemental contract has been prepared or executed.

1. 1. With respect to the first question, it is Mr. Burns’ position that § 1-84b(d) would prohibit his employment with Clough, Harbour until September 26, 1997, the one year anniversary of the last contract signed by the DOT and Clough, Harbour prior to his resignation from state service. In support of this position, Mr. Burns refers the Commission to State Ethics Commission Advisory Opinion Nos. 90-27 and 93-16. In A.O. No. 90-27, the Commission held that, with regard to a current state employee, "for one year from the date a grant assistance agreement is signed he may not accept employment with the grant recipient party to that contract." (Emphasis supplied.) In A.O. No. 93-16, the Commission, again regarding a current State employee, ruled that he "…may not accept employment with the private provider until the one-year anniversary of the signing of the contract has passed." (Emphasis supplied.)
   The language of § 1-84b(d), is, however, clear and unambiguous. Having resigned from State service, Mr. Burns may not accept employment with a party to a contract " …for a period of one year after his resignation…" Therefore, he may not commence employment with Clough, Harbour until February 1, 1998. The two cited Opinions are not inconsistent with this statutory mandate. Rather, both rulings concerned current state employees; and, consequently, both addressed the related, but distinct, question of whether a qualifying contract had been signed within the previous year. Thus, for example, in A. O. No. 93-16 the contract in question had been signed on July 22, 1992. Therefore, on July 12, 1993, the Commission advised that the state employee must wait "until the one-year anniversary of the signing of the contract", i.e. ten days, before he could legally leave State service to accept a position with a party to the contract. Under such circumstances, it makes little, if any, sense to reference the portion of § 1-84b(d) which requires waiting an entire year after resignation before accepting employment when, in the alternative, the individual may simply remain in state service for a far shorter period of time and then legitimately commence the private employment at issue. Given Mr. Burns’ prior resignation, however, this alternative is not an option he may chose to exercise.
2. The potential future consummation of a contract, postdating Mr. Burns’ resignation from State service, will have no effect, under § 1-84b(d), on his ability to accept employment with a party to that contract.
3. The signing of a supplement to an existing contract, after Mr. Burns’ resignation from State service, will similarly have no effect, under § 1-84b(d), on his ability to accept employment with a party to that supplement.

By order of the Commission,

Maurice FitzMaurice
Chairperson