This
matter came before the Nevada Commission on Ethics (hereinafter
"Commission") for hearing in a closed session on Thursday, November
18, 1999, on the first-party opinion request filed by Former Public Employee.
Notice of the hearing was properly served. Opinion No. 99-51 is confidential
pursuant to NRS 281.511(5).
Former
Public Employee is a private consultant formerly employed by a regulatory agency
of the State of Nevada. Former Public Employee's unclassified employment with
the state regulatory agency was involuntarily terminated as a result of a change
in administration.
In
a previous Opinion, the Commission instructed Former Public Employee to seek the
Commission’s guidance and advice on a case-by-case basis regarding
applicability of NRS 281.236 (the "cooling off" statute) to potential
contracts which would involve compensation fro -n certain companies certified in
Nevada at the time of Former Public Employee's termination of employment with
the State of Nevada. Pursuant to that previous Opinion, Former Public Employee
requested the Commission's opinion on whether NPS 281.236 prohibits him from
accepting consulting work from Corporation, a start-up company interested in
entering the local market in rural county.
Former Public Employee appeared in person, was sworn, and presented testimony.
The
Commission, after full consideration of the testimony, evidence, and argument,
makes the following Findings of Fact and Conclusions of Law:
1.
Former Public Employee was previously employed in an unclassified
position with a regulatory agency of the State of Nevada for a period of
approximately three and one-half years. Former Public Employee intended to
remain so employed, however the state regulatory agency terminated Former Public
Employee's employment unexpectedly, involuntarily, and due to a change in
administration.
2.
Former Public Employee's primary duties for the state regulatory agency
included preparation of comments and testimony on behalf of the regulatory
agency, managing other employees, and regulatory and market analyses for the
state regulatory agency (including, but not limited to, prospective
restructuring of industries regulated by the agency and analysis of the
traditional market structure and regulatory regime). Former Public Employee's
duties did not include auditing or directly advising the state regulatory agency
in its decision-making role. Former Public Employee never had authority to
render final decisions on issues before the state regulatory agency, nor did he
directly advise its commissioners in their decision-making role.
3.
Thereafter, Former Public Employee became a self-employed economic
consultant offering his services to (a) public and private consumers of services
produced in and outside Nevada (not regulated by the state regulatory agency),
and (b) services providers which were either regulated by the state regulatory
agency at the time Former Public Employee's employment with the agency was
terminated or which could become licensed under the state regulatory agency
within the year following Former Public Employee's employment termination.
4.
Former Public Employee's technical expertise and related competitive
policy issues has received national and international recognition, some of which
was prior to his employment with the state regulatory agency, including several
speaking engagements at national and international workshops.
5.
Corporation desires to retain Former Public Employee's services as a
consultant on technical issues and competitive policy issues related to
Corporation's desire to enter the local market in a rural county in Nevada.
6.
County is currently served by a county-owned company which is regulated
by a county board, not the state regulatory agency.
7.
Corporation is a start-up company, presently in the development stage. No
services provided by Corporation, or service prices, are within the jurisdiction
of the state regulatory agency, nor were they during Former Public Employee's
employment with the state regulatory agency.
8.
The only matters before the state regulatory agency involving Corporation
were routine matters which did not involve Former Public Employee's independent
judgment or discretion, and they were limited to three instances:
a.
In Year X, Former Public Employee's division routinely reviewed, among
dozens of others, Corporation's initial application. The review consisted of
comparing the application to a checklist and required no independent judgment or
discretion. The state regulatory agency routinely approved Corporation's
application.
b.
In Year X, Corporation petitioned the state regulatory agency for a
ruling. However, jurisdiction was in question and Corporation withdrew its
petition prior to litigation.
c.
In Year Z, Corporation applied with the state regulatory agency on Issue
Q. The application was routinely reviewed by staff in Former Public Employee's
division. Such applications are routine and rarely denied by state- regulatory
agency. State regulatory agency voted on Corporation's application after Former
Public Employee received notification of his employment termination.
9.
Former Public Employee has never reviewed data considered proprietary to
competitor company, nor has he ever had the opportunity to review such
proprietary data.
1.
Former Public Employee is a former public employee as defined by NRS
281.436.
2. The Commission has jurisdiction to render an opinion in this matter pursuant to NRS 281.511(1).
WHEREFORE,
on motion duly made, seconded, and approved by unanimous vote, the
Commission renders the following Opinion:
The
facts in this matter do not implicate the type of situation contemplated by NRS
281.236(3). In no instance did Former Public Employee (a) formulate policy
governing Corporation or the industry, nor was such included in Former Public
Employee's principal duties at state regulatory agency; (b) control or influence
a decision, investigation or other action which significantly affected
Corporation or the industry; or (c) obtain knowledge of, or have access
to, the trade secrets of a direct business competitor of Corporation.
Therefore,
the contractual relationship with Corporation contemplated by Former Public
Employee is not subject to the restraints of NRS 281.236(3).
NOTE:
THE FOREGOING OPINION APPLIES ONLY TO THE SPECIFIC FACTS AND CIRCUMSTANCES
DEFINED HEREIN. FACTS AND CIRCUMSTANCES WHICH DIFFER FROM THOSE IN THIS OPINION
MAY RESULT IN AN OPINION CONTRARY TO THIS OPINION. NO INFERENCES REGARDING THE
PROVISIONS OF NEVADA REVISED STATUTES QUOTED AND DISCUSSED IN THIS OPINION MAY
BE DRAWN TO APPLY GENERALLY TO ANY OTHER FACTS AND CIRCUMSTANCES.
DATED:
November 30, 1999.
NEVADA
COMMISSION ON ETHICS
By:
/s/ PETER C. BERNHARD,
Chairman