| Advisory Opinion No. 89-7: | Application of §73(8) of the Public Officers Law to former State employees. |
Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by §94(15) of the Executive Law, the Commission hereby renders its opinion on the application of §73(8) to such former State employees.
The Commission, because of the general questions of the application of §73(8) involved, will apply this Advisory Opinion to any similar request and to any complaint alleging a violation of §73(8) of the Public Officers Law.
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. No person who has served as a state officer or employee shall after the termination of such service or employment appear, practice, communicate or otherwise render services before any state agency or receive compensation for any such services rendered by such former officer or employee on behalf of any person, firm, corporation or other entity in relation to any case, proceeding, application or transaction with respect to which such person was directly concerned and in which he personally participated during the period of his service or employment, or which was under his or her active consideration. . . . This subdivision shall not apply to any appearance, practice, communication or rendition of services before any state agency,. . .or to the receipt of compensation for any such services, rendered by a former state officer or employee . . . which is made while carrying out official duties as an elected official or employee of a federal, state or local government or one of its agencies.1 (emphasis added)
1.To what extent may a former State employee within two years of termination of State employment assist a client in matters related to the preparation of a permit application, grant application, or contract proposal prior to the submission of that application or proposal to his or her former agency assuming the former employee was directly involved in the project while employed by that agency? (emphasis in original)
The question as presented combines the aspects of the two revolving door provisions of
§73(8) of the Public Officers Law. A former State employee may not receive
compensation for any matter related to the preparation of a permit application, grant
application or contract proposal prior to its submission to his or her former employing State
agency within two years of termination from State service whether or not he or she was
involved in the project while employed by the agency. Even though the former employee does
not appear or practice before the former agency, he or she is barred for two years from
receiving compensation in any form for
Further, to the extent that the former employee was directly involved in the permit application,
grant application or proposal during his or her employment with the State agency, he or she is
permanently proscribed by §73(8) from appearing, practicing or receiving compensation
for any services before any State agency in relation to that application or
transaction.
The question suggests that the underlying issue is the propriety of services performed by a
former State employee prior in time to a permit or grant application or
contract proposal or any matter actually being submitted to the former employing agency. The
question is framed to suggest that, once the preliminary services had been performed and
compensation received therefor, the former State employee would disassociate him or herself
from the matter before it is submitted to the former agency for consideration.
Presumably, this disassociation would occur to avoid the certain application of the revolving
door provisions. In addition, the question supposes that the former employee was directly
involved in the project while in State service.
The Commission must determine the meaning of the phrase "before such agency" as used in
§73(8) which triggers the application of the revolving door provision. The Commission
reviewed the legislative history surrounding the Ethics in Government Act, previous Attorney
General's opinions and the rules of statutory construction for guidance.
Subdivision 8 of §73 can be said to reflect the same intent expressed by Congress when
it enacted the federal restrictions on post-employment activities--that "[f]ormer officers should
not be permitted . . . to utilize information on specific cases gained during government service
for their own benefit and that of private clients."2
In interpreting the former revolving door provisions which preceded the current New York
State restrictions on post-employment activities,3 the
Attorney General stated that the subdivision
The time frame in which the services of the former State employee are rendered with respect
to bringing a case, proceeding, application or transaction in front of the former employing
agency is not the decisive factor in determining whether or not it is permitted under the law.
Clearly, a specific permit or grant application or contract proposal as posed in the question is
under the jurisdiction of a particular agency, at all times, whether or not the agency physically
has received the documentation or was yet to be contacted on the matter.7
To conclude that the revolving door proscription does not apply in the circumstances described
herein would run afoul of the purpose of the subdivision and contort the meaning of the
subdivision by splitting hairs. It would not be a sensible result to find that §73(8) would
allow former State officers and employees to be compensated for services rendered on permit
or grant applications or contract proposals in circumstances where all of their services were
rendered "prior to submission" to the agency.8
Such an interpretation would create a window in the revolving door proscriptions which the
Commission does not believe was intended by the Legislature. If a private client has chosen to
retain the services of the former State employee, it is likely that choice was made on the basis
of the former State employee's knowledge of the subject matter as well as of the inner
workings and policies of his or her former agency. The client is seeking specific expertise and
"insider" knowledge. The revolving door proscriptions are aimed at preventing former State
employees from utilizing such knowledge, experience and contacts gained in State service to
the benefit of a private client or to his or her own personal gain.
Therefore, the Commission concludes that the two year bar of §73(8) acts to preclude a
former State employee from appearing, practicing or receiving compensation for services
rendered in relation to the preparation of a permit or grant application or contract proposal
even if such services were rendered prior to the submission of such application or proposal to
the former employing agency. As well, the lifetime bar acts to preclude such activities before
any State agency where the former employee personally participated in, was directly concerned
with, or actively considered the case, proceeding, application or transaction while employed.
2(a). To what extent may a former State employee within two years of termination of his or
her State employment communicate, on behalf of a client, with his or her former agency
relative to generic issues regarding the policies and procedures of his or her former agency?
A "communication" by a former State employee on behalf of a client or any person amounts to
an appearance or practice before his or her former agency prohibited by §73(8).
Generic issues regarding policies and procedures would fall within the "other matters"
category of proscribed circumstances and would be barred whether or not compensation is
received for the services rendered.
2(b). May a former State employee within two years of termination of his or her State
employment make a freedom of information request pursuant to Public Officers Law,
§87 on behalf of a client?
A former State employee, within two years of termination from State service, may not appear
or represent a client or any person on a Freedom of Information Law request. Such an
appearance under Article 6 of the Public Officers Law (Freedom of Information), would not
simply be pro forma. Should the request be denied, §89(4) of the Public
Officers Law allows an appeal to be filed in writing and representation before such former
State agency in order to reverse an initial denial of access to the information. A Freedom of
Information Law request made on behalf of a client or other person would be an appearance or
practice before the former agency which is prohibited by §73(8).9
However, a former employee who is acting solely on his or her own behalf (and is not
compensated for the services) in relation to a Freedom of Information Law request, may make
such a request within two years of termination of employment with his former agency. In this
limited circumstance, the individual is acting on his or her own behalf in relation to a personal
inquiry. The Commission does not find that the "revolving door" provision was meant to limit
such personal inquiries for public information, as long as such inquiries are personal in nature
only and relate solely to the inquirer. The Commission would look closely at any
circumstance which could be construed to be merely a veil to make an otherwise prohibited
appearance before a former employing agency.
3.To what extent may a former State employee within two years of termination of his or her
State employment appear or practice before his or her former agency on matters on which he
or she was not directly involved while an employee of the agency on behalf of a municipality
for which he or she is acting as a paid consultant?
There is a total ban for two years on
If the appearance or practice is made by a former State employee as an
employee or elected official of a municipality, such conduct
would be allowed. Section 73(8) of the Public Officers Law was amended in 1989 to provide
a clarification of the status of a former State agency employee who became employed by or
was elected to an official position of a local government.10
That narrow exception to the "revolving door" restriction clearly does not
extend to "paid" consultants or retained representatives of such government.11 Where the former employee is retained as a consultant or
representative of the municipality and no employment relationship exists, the revolving door
provision applies to prohibit such conduct before one's former agency.
For the purposes of construing the §73(8) reference to "corporation" on whose behalf a
former employee may not appear, practice or render services for compensation, the State
Ethics Commission has concluded that "corporation" includes "municipal corporation",
including counties, towns, cities and villages.12
4.To what extent may a former DEC employee, within two years of termination of his or her
State employment, participate, on behalf of a client, in the settlement of an action which has
been commenced either by or on behalf of the DEC in a state or federal court when settlement
negotiations involve direct contact with the DEC?
A former DEC employee, within two years of termination from State service, may participate
in the settlement of an action in State or federal court on behalf of a client, even if such
settlement negotiations require direct contact with DEC staff. The representation of the client,
as long as the matter is in a court proceeding and does not involve a case, proceeding,
application, other matter or transaction which is
The lifetime bar of §73(8) of the Public Officers law is different and distinct from the
two year bar, and it also must be considered in light of the question posed. The lifetime bar
prohibits a former employee from receiving compensation in relation to any case, application,
proceeding or transaction without any limitation as to where such activity occurs--before any
State agency or any court of competent jurisdiction. The "lifetime" prohibition reads as
follows:
This opinion, until and unless 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 an opinion.
All concur:
Elizabeth D. Moore, Chair
Joseph J. Buderwitz, Jr.
Dated: December 14, 1989
ENDNOTES
1. The last sentence cited became effective July 1, 1989, pursuant to Chapter
242 of the Laws of 1989.
2. 1978, US Code and Administrative News, p. 4247, as cited in State Ethics
Advisory
Opinion 88-1.
3. §73(7) of the Public Officers Law.
6. McKinney's Statutes, §96, pp 202-210.
7. Webster's Ninth New Collegiate Dictionary defines "before" to mean
"under the jurisdiction. . .of"
8. The word "before" is not an indication of time. For, once the application
has been filed,
even should such former employee then totally withdraw from participation now that the
former agency actually has the application, he or she at the moment of filing will have
received compensation for services rendered in relation to an application, etc., before the
agency.
9. The Freedom of Information Law guarantees the right of the public to have
access to the
public documents of a State agency. The law does not require any individual to appear by
attorney or representative to obtain such information. The preclusion of such an appearance,
etc., by a former State employee does not adversely affect a potential client--in that such client
is able to make his or her own request for such information.
10. See footnote 1 and corresponding text.
11. This interpretation is consistent with the principle that the specific
mention of one person
or thing [in a statute] implies the exclusion of other persons or thing[s]. McKinney's Statutes,
§240. Clearly, the Legislature could have extended the exemption from the application
of the revolving door restriction to include not only employees of governments and elected
government officials but also paid consultants to government entities. It did not make that
extension.
12. §2 of the General Municipal Law defines "municipal corporation"
to include counties, towns, cities and villages.
13. Section 73(1)(g) defines the term "state agency" to mean any state
department, or division,
board, commission or bureau of any state department, any public benefit corporation, public
authority or commission at least one of whose members is appointed by the governor, or the
state university of New York or the city university of New York, including all their
constituent units except community colleges and the independent institutions operating
statutory or contract colleges on behalf of the state.
addresses the ethics problems that arise when a State employee leaves State
service to work in the private sector. . . . The statute also seeks to deal with
the situation where a former State Employee, soon after separation, deals with
his former colleagues in their official capacities, and may receive special
treatment or may create the impression in others that he enjoys the favor of his
former colleagues. . . . Although a particular individual may not actually
engage in wrongdoing, it is the potential for abuse that the statute
addresses.4
McKinney's Statutes, §95, suggests that courts, when passing on matters of legislative
intent, should look at the old law, and the mischief sought to be remedied by the new
legislation, and should construe the act in question so as to suppress the evil and advance the
remedy.5 It is frequently held that the words of a
statute are construed with reference to its subject matter and the object sought to be obtained;
and that construction is to be preferred which furthers the object, spirit and purpose of the
statute. McKinney's Statutes, §96.6
. . . (n)o person who has served as a state officer or employee shall after the
termination of such services or employment appear, practice, communicate or
otherwise render services before any state agency or receive compensation for
any such services rendered by such former officer or employee on behalf of any
person, firm, corporation or other entity in relation to any case, proceeding,
application or transaction with respect to which such person was directly
concerned and in which he personally participated during the period of his
service or employment, or which was under his or her active consideration.
Therefore, a former State officer or employee is barred from receiving compensation from a
client in any federal or State court proceeding where that former officer or employee was
either directly concerned with and personally participated in the case, application, proceeding
or transaction or had such case, etc., under his or her active consideration during State
employment or service.
Angelo A. Costanza
Norman Lamm
Robert B. McKay, Members