After recent retirements, the state Department of Social Services is relying on retirees hired back through a vendor for information technology work — so much so that the commissioner has warned that a potential ethics opinion discouraging the practice could lead to “a threat to public health, safety and welfare.”
Social Services Commissioner Roderick L. Bremby recently told the Citizen’s Ethics Advisory Board that without the retirees, his department would have no one able to troubleshoot and maintain its antiquated eligibility management system, or EMS, which contains more than 100 databases for programs serving 650,000 clients.
Roderick Bremby
“If EMS databases are corrupted or broken, we are unable to issue notices and benefits to clients,” Bremby, who typically favors understatement, wrote last month. “Without the staff to maintain EMS we will truly face a threat to public health, safety and welfare.”
The ethics board is not considering a case involving DSS, but Bremby expressed concerns about the implications of a similar case involving the Department of Labor.
In that case, Office of State Ethics staff issued a draft advisory opinion indicating that it would be against state law for the labor department to hire two recently retired staffers back as consultants through an outside vendor until they have been out of state service for one year.
Separately, DSS got informal guidance from ethics office staff that it would be permissible to hire three recent DSS retirees through a vendor for IT work.
In two letters to ethics board chairmen, Bremby expressed concerns that the draft opinion could pose problems for his department, which already hired the retirees, and asked the board to postpone its review of the matter so DSS could prepare a response and address the circumstances it was facing.
On Tuesday, department spokesman David Dearborn said, “DSS is working with the ethics office staff and board to resolve any questions or concerns. We appreciate the continuing discussions about what we believe is a unique situation, and are providing further information at the office’s request.”
Outdated technology, aging workers
The DSS information technology workers were among more than 2,000 state employees who retired between June, shortly after Gov. Dannel P. Malloy’s administration announced a tentative labor concessions deal that changed some retirement benefits, and October, when the changes took effect.
At DSS, the IT staff retirements struck two points of vulnerability: An outdated computer system and an aging workforce.
The eligibility management system dates back to 1989 and runs on COBOL, one of the oldest computer programming languages. The supply of people at DSS with the skills to work on EMS is dwindling; 80 percent of the department’s IT programmers who work on it will be eligible to retire in the next five years, and the rest will be able to retire within eight.
DSS recently launched a project to replace the eligibility management system, with estimates that it will take four to six years to get the new system fully implemented. Bremby said last month that part of the urgency of getting a new system was the potential of having no one left to maintain the current one.
New recruits to the department had no experience with the “vastly outdated technology,” Bremby wrote in a Dec. 14 letter to then-ethics board Chairman Thomas H. Dooley. He added that the department is relying on the retirees “to see us through the transition to a new eligibility management system.”
If the retirees can’t do work for DSS until a year after retiring, Dearborn said the department would need to hire outside consultants with experience in COBOL and the databases used in the system. “The availability of these resources is limited as the need for these skill sets is dwindling,” he said.
Dearborn added that it’s not feasible to teach a current programmer to use COBOL, and said it takes almost two years to train a COBOL programmer in the workings of DSS’ eligibility management system to the point where the person could work and code on his or her own.
“There will be crippling consequences for this agency if the Board adopts this draft opinion,” Bremby wrote.
Labor department loses IT workers
The Department of Labor case stems from the retirement of five IT staff members last fall. The department has not had the time or resources to fully train other workers to replace them, according to the draft advisory opinion, and hired two retirees to work on a temporary basis.
Two other retirees, an IT supervisor and IT analyst, left the department under early retirement agreements that prohibit them from returning to state service in any capacity. The only way they could come back to the department would be as consultants hired through a contract with a vendor.
But the ethics board’s draft opinion says that would violate a state statute aimed at preventing former state employees from using the contacts and influence they developed while in state service to get an improper advantage in future dealings with the agency. Under the law, within a year of leaving state employment, a former executive branch employee can’t represent anyone besides the state for compensation before the department where he or she worked.
“[T]he proposed consulting arrangement is prohibited by the plain language of [the statute],” the draft opinion said.
If the two retirees can’t return as consultants for several months, labor department spokeswoman Nancy Steffens said that other experienced consultants are helping to “fill the knowledge gap” that stemmed from the retirements.
“However, the retirements resulted in the absence of critical business knowledge which may have an impact on the unit’s ability to deliver timely IT services and support to internal customers and to the public,” she said.
Conflicting advice
Carol Carson, executive director of the Office of State Ethics, said the office staff provide informal opinions based on the information presented to them. When matters go before the ethics advisory board, she said, staff do more extensive research.
In the case of the conflicting guidance given in the DSS and labor department cases, she said, the DSS opinion was provided first. Then, when the labor department question came in and was destined to go before the board, staff had a more detailed set of facts and did more research, reaching a different conclusion than in the DSS situation.
Carson said the department gets about 26 requests for advice a day and issues about 1,000 written informal opinions per year in addition to questions answered by phone.
Bremby’s letters addressed how the draft advisory opinion could pose problems for the department, but didn’t address the legal basis for the conclusion. Carson said there is precedent for the ethics advisory board to consider the impact on the state, as it did in a 2008 situation involving the Office of the State Treasurer.
That case involved a question about a state law prohibiting the treasurer from paying or contracting with any investment services firm that had a principal who made a contribution to the treasurer’s campaign. The treasurer’s office asked what would happen if a person contributed to the treasurer’s campaign, then became a principal in an investment services firm; would that firm then be prohibited from doing business with the treasurer’s office?
Yes, the board concluded.
The treasurer’s office argued that the board’s position could jeopardize existing relationships with investment firms, and could potentially lead the treasurer’s office to default on its obligations in a long-term investment arrangement, costing “tens or hundreds of millions of dollars” to pension assets.
The board issued an accompanying order that called on the ethics office to refrain from filing or prosecuting any ethics complaints against the state treasurer involving circumstances addressed in the case. In doing so, the board cited the “magnitude and scale of the potential financial harm” to the treasurer’s office and the fact that the treasurer and investment firms had previously interpreted the statute differently from the board’s opinion. It said the board “exercises its discretion to act in the public’s interest.”
In any case, Carson said, “It’s the board’s call.” The board is scheduled to address the labor department issue at its Feb. 23 meeting.