No. 07-I-6 State Ethics Commission Official Advisory Opinion July 12, 2007
The Indiana State Ethics Commission (“Commission”) issues the following advisory opinion concerning the State Code of Ethics pursuant to IC 4-2-6-4(b)(1).
Summary
42 IAC 1-5-14 Postemployment restrictions (IC 4-2-6-11)
An Environmental Scientist with IDEM was permitted to accept employment with the subcontractor of a State grantee since he only evaluated and made no discretionary decision with respect to the subcontract; however, he was prohibited from assisting the subcontractor in particular matters in which he personally and substantially participated as a state employee, including the subcontract between the subcontractor and State grantee.
Background
A state employee serves as an Environmental Scientist 3 in the Watershed Planning Branch in the Office of Water Quality (OWQ) of the Indiana Department of Environmental Management (IDEM). He has worked for OWQ since August 1, 2005.
The Environmental Scientist’s responsibilities include managing over 25 grant funded projects that are administered contractually between the State and local sponsors. The Environmental Scientist explained that the grant funded projects are locally led efforts to either improve planning for local stream resources or to install best management practices designed to improve water quality at the local level.
A Soil and Water Conservation District (SWCD) sponsors one of the projects the Environmental Scientist manages. The Environmental Scientist stated that he had no influence on the SWCD being awarded the grant, but he drafted the contract language. In addition, he helped oversee the contract between the State and the SWCD.
The Environmental Scientist explained that after the contract was signed, the SWCD subcontracted all work out to an environmental consulting firm (Firm). He indicated that the State does not influence the choice of the subcontractor, but reviews the subcontract to ensure that it complies with the budget, schedule, and scope of the original grant contract between the State and the SWCD. The Environmental Scientist wishes to accept an employment opportunity to work for the Firm.
Issue
The issue in this case is whether the Environmental Scientist would be prohibited from accepting employment with a subcontractor of a state grantee without violating the post-employment statute, IC 4-2-6-11.
Relevant Law
IC 4-2-6-11
One year restriction on certain employment or representation; advisory opinion; exceptions
Analysis
Based on the facts presented, it would appear that the Environmental Scientist’s prospective employment with the SWCD’s subcontractor invokes consideration of subsections (b)(2) and (c) of the post-employment statute.
With regard to subsection (b)(2), the Environmental Scientist indicated that he has not been involved in the selection of subcontractors as a state employee for the SWCD projects that he manages. However, he indicated that he reviewed the SWCD’s subcontract with the Firm for consistency with the contract between the SWCD and the State. In this case, it appears that the Environmental Scientist was only involved in the evaluation of the subcontractor and was not in a position to make a discretionary decision that would affect the outcome or administration of the contract on behalf of the State. Accordingly, the Environmental Scientist would not be subject to the restriction set forth in subsection (b)(2) of the statute.
With respect to subsection (c), the Environmental Scientist would be prohibited from assisting or representing the subcontractor in any matter in which he personally and substantially participated in as a state employee. In this case, the Environmental Scientist indicated that his current responsibilities as a state employee generally include managing over 25 grant funded projects that are administered contractually between the State and local sponsors. In this case, the Environmental Scientist personally and substantially participated in the SWCD contract in that he drafted the contract language. SWCD then hired the Firm to do the work of the SWCD project. Accordingly, absent a waiver from his agency appointing authority, the Environmental Scientist would be prohibited from representing or assisting the Firm in the project that the SWCD subcontracted it to do. The analysis in this opinion only contemplates the activities that the Environmental Scientist has disclosed. Should the Environmental Scientist be required to represent or assist his intended employer in a particular matter that is enumerated in subsection (a) of the statute, the post-employment restriction in subsection (c) would be implicated and he would be prohibited from representing or assisting his intended employer on that particular matter for the life of the matter with which he was involved.
Conclusion
Pursuant to the foregoing analysis, the Commission finds that the three hundred sixty-five (365) day restriction set forth in the post employment statute does not apply to the Environmental Scientist. However, the Environmental Scientist would be prohibited from assisting the Firm in any “particular matter” that he personally and substantially participated in as a state employee, absent a waiver from his agency appointing authority.