|Advisory Opinion No. 01-5:||The two year bar does not preclude a former Transit Authority employee from serving as a signalman on Transit Authority contracts, subject to certain conditions.|
This advisory opinion is issued in response to a request by David Goldenberg ("Goldenberg"), a Special Counsel with the New York City Transit Authority ("TA"). He asks whether the two year bar of Public Officers Law §73(8)(a)(i) precludes former TA employees from working for contractors as "signalmen" on signal modernization contracts with the TA.
Pursuant to the authority vested in the New York State Ethics Commission ("Commission"), by §94(15) of the Executive Law, the Commission concludes that, subject to the conditions discussed below, former TA employees may work as signalmen on TA contracts during the two years following their separation from TA service without violating the two year bar of Public Officers Law §73(8)(a)(i).
According to Goldenberg, signal modernization and related contracts are important to the TA "to improve safety and ameliorate capacity constraints." The position of signalman is essential to the successful performance of such contracts. Contractors advise the TA of significant difficulties in identifying and hiring qualified signalman because, among other qualifications, candidates must be experienced in rapid transit signaling and almost all qualified candidates emerge from the ranks of former TA employees. If the two year bar prohibition of Public Officers Law §73(8)(a)(i) precludes former TA employees from working as signalmen, the pool of qualified candidates is diminished significantly.(1)
Goldenberg reports that the primary duties and responsibilities of a signalman are as follows:
Signal bulletins serve to notify the TA's operating personnel of any work that will modify the existing in-service signal system and identify the impacts of the modification. Before a signal bulletin can be issued, it must be preceded by a signal bulletin request which is signed and prepared by the signalman and the contractor's project manager, and must be reviewed and approved by the TA's construction manager. The signal bulletin request, in essence, serves to certify to the TA that the installation of the signal equipment was performed according to specifications and standards, and that it is safe to place the new signal equipment into service.
In all instances, according to Goldenberg, a signalman reports to and interfaces with the contractor's foreman who, in turn, reports to the contractor's general foreman who interfaces with TA personnel. A signalman may, in some instances, discuss technical issues directly with TA personnel.
The statutory language setting forth the two year bar is found in Public Officers Law §73(8)(a)(i), which provides as follows:
No person who has served as a state officer or employee shall within a period of two years after the termination of such service or employment appear or practice before such state agency or receive compensation for any services rendered by such former officer or employee on behalf of any person, firm, corporation, or association in relation to any case, proceeding or application or other matter before such agency.
These restrictions set the ground rules for what individuals may do with the knowledge, experience and contacts gained from public service after they terminate their employment with a State agency. The two year bar prohibits former State officers and employees from appearing, practicing or rendering services for compensation in relation to any case, proceeding, application or other matter before their former agency for two years following their separation from State service.
In Advisory Opinion No. 99-17, the Commission revisited the interpretation of the post-employment restrictions in the context of a former New York State Department of Transportation ("DOT") engineer employed as a construction inspector on a road construction project involving a State highway. In that instance, the former DOT employee was not required to write reports that would be submitted to DOT, take part in decisions relating to change orders or progress estimates, or otherwise seek guidance from DOT.
In Advisory Opinion No. 99-17, the Commission concluded that the two year bar against a former State employee "appearing or practicing" before his former agency reaches only efforts to influence a decision of the former agency or to gain information from the agency that is not generally available to the public. It does not forbid all communications with the agency. However, the Commission did conclude that contact between the former DOT employee and current employees concerning change orders and interpretation of design specifications would likely involve an attempt to influence DOT decisions and would still be prohibited. In contrast, the former DOT employee would be allowed to speak with current DOT employees concerning the consultant's daily schedule of work to be performed, as he would not likely be involved in an attempt to influence a DOT decision.
In Advisory Opinion No. 00-04, the Commission considered whether a former DOT employee could serve as an office engineer. While the office engineer would not have occasion to have contact with DOT and therefore would not be violating the prohibition on appearing before his former agency, he would be producing a report based upon the input of others. Thus, the Commission had to determine whether the production of the report would cause the former employee to "render services" for compensation on a matter before his former agency, which would be barred.
The office engineer was required to take certain information from the consultant's inspectors and resident engineer, input the data into a software program selected by the consultant and through the programmed formula produce forms and reports for the resident engineer's review and submission to DOT. The Commission concluded that the office engineer's entry of data provided by others and on behalf of others is not preparation of work product barred by the rendering services clause. Rather, he was not creating anything original or using his expertise to prepare a document representing his thoughts. The Commission noted:
[the office engineer] is a conduit of information, a facilitator, and a scrivener, but he will not personally contribute any original information to reports submitted to his former agency. While the "preparation" of inspection reports by a former employee has been barred by Commission opinions, the Commission interprets that precedent to allow a former employee to render support services which facilitate the physical preparation of such reports. Therefore, [the office engineer] may take the job as office engineer, as he will be neither appearing nor rendering services on a matter before DOT within two years of separation from State service.
The duties of a signalman, for the most part, are similar to those activities permitted under Advisory Opinion Nos. 99-17 and 00-04, inasmuch as signalmen do not regularly appear before TA personnel. However, two aspects of their duties raise the following issues: (1) whether a former signalman may engage in technical conversations with TA personnel to resolve problems in the field and (2) whether a signalman may be involved in the issuance of signal bulletins.
In Advisory Opinion No. 99-17, the Commission permitted a former DOT employee to have contact with his former agency as long as the communication was not an effort to influence a decision of the former agency or to obtain information not available to the public. In contrast, a signalman is expected to have contact with TA personnel when problems occur in the field and a resolution must be reached.
If the signalman's task is merely to inform the TA of the problem and its resolution by the contractor, then the Commission concludes that the signalman may have that contact even if in the course of the conversation technical issues are discussed. On the other hand, if there were disagreement on how to resolve the problem between the contractor and the TA, the two year bar precludes the signalman from pursuing the contact, because at that point the communication is intended to influence a decision of the former agency. Therefore, to avoid a violation of the two year bar, the signalman must refer the matter to his or her foreman or the contractor's project manager. This result is consistent with Advisory Opinion No. 99-17.
Goldenberg also states that a signalman is involved in the signal bulletin process in which the contractor certifies to the TA that the installation of the signal equipment was performed according to specifications and standards and that it is safe to place the new signal equipment into service. Before a signal bulletin can be issued, it is preceded by the bulletin request which is prepared and signed by the signalman and the contractor's project manager. It must be reviewed and approved by the TA's contract manager. While the bulletin is technically a "work product" which is reviewed by the TA, it is confirmation of the work performed. The Commission views the signalman's involvement in the signal bulletin process as "support services which facilitate the physical preparation of such reports." (See, Advisory Opinion No. 00-04.) The Commission concludes that the signalman may be involved in the bulletin request process, except in the event that the TA has a question or any issue with it, that matter must be referred to the signalman's foreman or the contractor's manager, and the signalman is precluded from any further oral or written contact with the TA.
The Commission concludes that, subject to the conditions discussed in this opinion, former TA employees may work as signalmen on TA contracts during the two years following their separation from TA service without violating the two year bar of Public Officers Law §73(8)(a)(i).
This opinion, unless and until amended or revoked, is binding on the Commission in any subsequent proceeding concerning the person who requested it and who acted in good faith, unless material facts were omitted or misstated by the person in the request for opinion or related supporting documentation.
Paul Shechtman, Chair
Robert J. Giuffra, Jr.
Henry G. Gossel
O. Peter Sherwood, Members
Dated: October 18, 2001
1. Prior to Goldenberg's request, the Commission has received and responded to several requests from former TA employees for post-employment advice. In each case, the Commission has permitted the former TA employee to work as a signalman pursuant to a contract with TA. Given the numerous requests for opinions and the additional detail regarding duties that Goldenberg has provided, the Commission determined to issue a formal opinion.