Advisory Opinion No. 2001-21

Application Of The Code’s Post-State Employment Provisions To
The Former Director Of Contracts And Purchasing For DOIT

Donald J. Maloney has asked the State Ethics Commission for an advisory opinion regarding the application of Conn. Gen. Stat. §1-84b(f) to his post-state employment opportunities.

Mr. Maloney retired from state service on June 1, 2001. Prior to that date he was the Director of Contracts and Purchasing for the Department of Information Technology (DOIT). In that position he was responsible for issuing invitations to bid and requests for proposals for computer related systems, hardware, software and consulting services.

Mr. Maloney has now started his own business, Technical Acquisition Specialists. In this work he plans to assist firms in the preparation of documents to clearly delineate the specifications and requirements contained in invitations to bid and requests for proposals. Furthermore, he anticipates assisting these businesses in the preparation of responses to the invitations to bid and requests for proposals.

In the course of his work, Mr. Maloney expects to be involved with certain companies which, in his former state position, he dealt with in either an oversight or contractual decision-making capacity. While he would not be an employee of any of these entities, he would receive compensation for work performed on their behalf.

Based on these facts, Mr. Maloney seeks guidance regarding the application of §1-84b(f) and the Ethics Code’s other post-state employment provisions to his proposed activities.

In pertinent part, §1-84b(f) states:

No former public official or state employee (1) who participated substantially in the negotiation or award of…a state contract valued at an amount of fifty thousand dollars or more…or (2) 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.

Pursuant to State Ethics Commission Regulations:

For the purposes of subsection (f)…of section 1-84b of the general statutes, substantial participation shall be considered to mean participation that was direct, extensive and substantial, not peripheral, clerical or ministerial.

Regulations of Conn. State Agencies Sec. 1-81-38(a) For the purposes of subsection (f)…of section 1-84b employment shall include work as an independent contractor.

Regulations of Conn. State Agencies Sec. 1-81-38(d)

Applying these statutory and regulatory provisions to Mr. Maloney’s situation, two conclusions are readily apparent. First, given his salient role in DOIT’s procurement practices as its Director of Contracts and Purchasing, he will be deemed to have participated substantially in every contract award of $50,000 or more for computer related systems, hardware, software and consulting services during his last year of state service. Second, he will be prohibited from working for any party to such a state contract for one year, regardless of whether the work is performed as an employee or an independent contractor.

Additionally, Mr. Maloney must be mindful of Conn. Gen. Stat. §1-84b(b) which prohibits him, for one year, from representing anyone, other than the State, for compensation before his former agency, i.e., DOIT. As a consequence, while he may accept compensation from entities not subject to the §1-84b(f) prohibition, his work, for one year from June 1, 2001, must be performed in a manner that does not reveal his representation to DOIT, i.e., he may not appear in person before the agency, phone the agency, nor submit documentation containing his signature, professional stamp or letterhead.

Finally, pursuant to Conn. Gen. Stat. §1-84b(a), Mr. Maloney may never represent anyone other than the State regarding a particular matter in which he participated personally and substantially while in state service, if the State has a substantial interest in the matter. Thus, for example, if he was involved in the award of a state contract for computer systems, he may never represent the recipient of the contract in a dispute with the State regarding the terms of the agreement.

By order of the Commission,

Rosemary Giuliano
Chairperson