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

Lori Romick, an Environmental Analyst III, at the Department of Agriculture (DoA), Bureau of Aquaculture, has asked about the application of the post-state employment rules to her possible acceptance of employment with the United States Food & Drug Administration (FDA).  Her proposed employment would be as a Shellfish Specialist, which would require her to review Connecticut’s compliance with the National Shellfish Sanitation Program (NSSP) requirements.  Ms. Romick’s current duties at the DoA include assisting the State Shellfish Program to maintain its compliance with the NSSP, as well as supporting the Department of Environmental Protection’s enforcement actions regarding illegal shell fishing operations.

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 Western Connecticut shoreline.  She states that since 2003, she has been the only such analyst at the DoA with “direct knowledge of most of the [area’s] pollution sources and needs for remediation in order to allow for . . . safe shellfishing.” 

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 firm’s letterhead. See Advisory Opinion No. 92-10, 53Conn. L.J. No. 42, p. 3D (4/14/92).

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. Romick’s federal job would be to review the State of Connecticut’s compliance with the NSSP for the years on which she worked on the program, it would constitute a “particular matter” on which she could not work while in federal service. “To hold otherwise would frustrate the principal] purpose of §1-84b(a): 

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 Conn. L.J. 15, p. 3D (10/11/88).  In that opinion, a mid-level state employee who worked for the Office of Policy and Management (“OPM”) was allowed to meet and work with OPM employees within a year of her separation from state service.  Under the opinion, contact with her former agency was limited to technical implementation of a project which was already in place when she left state service.  In that opinion, the Commission held that, provided there was no opportunity for the exercise of any discretionary authority on the part of OPM, the legislative intent of the Code section (to prevent the improper use of contacts within the one-year cooling off period) was not circumvented by this employee’s contact with her former agency in connection with the technical implementation of an already-executed contract, no portion of which was in dispute.  In effect, the former state employee was performing technical work which aided the State, although her salary was paid by her private employer.

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 state’s 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. Romick’s expertise of Connecticut’s 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 (4/14/92).

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 state’s NSSP compliance instead of Connecticut’s.  If such a restructuring is possible, the restructured job – assuming that it would not have contact with Connecticut’s DoA -- would meet the requirements of Conn. Gen. Stat. §§ 1-84b(a) and 1-84b(b).

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 FDA’s 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 one’s 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 agency’s 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 individual’s experience and expertise. Advisory Opinion No. 98-21, 60 Conn. L.J. No. 10, p. 3C (September 8, 1998).  Accordingly, Ms. Romick is permitted to consult with the DoA on non-FDA matters so long as, for the first year, any compensation she receives is at a rate no higher than she earned while in state service.  Finally, given her potential regulatory role with the FDA, Ms. Romick is advised to do any such consulting in writing so as to make clear that her consulting role is strictly outside the jurisdiction of the FDA.

By order of the Commission,

Hugh Macgill
Chairperson