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 DEP’s 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 employee’s 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 dealership’s 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 dealership’s 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 Code’s 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 employee’s 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 employee’s 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 employee’s 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