STATE OF NEW YORK
STATE ETHICS COMMISSION

Advisory Opinion No. 89-12:

Application of §73(8) of the Public Officers Law to a former State employee under certain circumstances.

INTRODUCTION

The following advisory opinion is issued in response to a request from an out-going employee of the Department of [ ] for an advisory opinion concerning the application of the revolving door proscriptions of §73(8) of the Public Officers Law or any other subdivision of §73 or §74, or rules promulgated by the State Ethics Commission ("Commission") dealing with ethics, to his future employment opportunities.

Pursuant to the authority vested in the Commission by §94(15) of the Executive Law, the Commission hereby renders its opinion concerning the application of §73(8) to such individual. The Commission concludes that the other subdivisions of §73 and §74 of the Public Officers Law and rules promulgated by the Commission do not apply to the individual's circumstances in that these provisions only apply to individuals while they are officers or employees of the State of New York.

BACKGROUND

The requesting individual intends to leave his position as an employee of the Department of [ ] ("Department"). He served there [in the press office]; his duties included responding to questions from the media concerning [Department matters].

The individual most recently has served as [Special Assistant] and, in that capacity, he appeared before legislative staff and legislators with regard to specific bills of interest to the [Department]. He met with representatives of State and local government agencies working on bills of interest to the [Department], and continued to provide public information services to the media.

After leaving State service, the individual intends to appear on behalf of non-governmental entities to lobby or advocate for new policies or laws.

APPLICABLE LAW

Subdivision 8 of §73 of the Public Officers Law provides, in part, as follows:
8. 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 resect 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 either house of the legislature, or to the receipt of compensation for any such services, rendered by a former state officer or employee or former member of the legislature or legislative 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.

DISCUSSION

The post-employment restrictions of §73(8) may be divided into two types: the two year ban and the lifetime ban. The two year ban is absolute with respect to appearing, practicing or receiving compensation for services rendered before the State agency which employed the former employee. The lifetime ban applies to appearing, practicing, communicating or rendering services or receiving compensation for services before any State agency at any time with respect to cases, proceedings, applications or transactions with which the individual was directly concerned and in which he personally participated or which were under his active consideration while a State employee.

With that explanation, the individual's questions shall be addressed in order, followed by the Commission's conclusions.

1. May I appear before the Governor and the executive agencies?

Since the individual's "former" agency is the [Department], which is a separate and distinct State agency from the Executive Chamber, the two year ban does not apply to appearances before the Governor. It applies only to preclude the individual from appearing before the [Department] and its representatives.

Application of the lifetime ban yields a different conclusion. The individual cannot appear, practice, communicate or otherwise render services before any State agency, whether before the Governor or other State agencies covered by §73 1, or receive compensation for any such services rendered 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 or which was under his active consideration while a State employee.

Without specific details from which to draw conclusions, the Commission cannot determine which specific activities would be affected by the lifetime ban.

2. May I make appearances before the legislature?

Yes. The Legislature is not defined as a "state agency" within §73 of the Public Officers Law and, therefore, the post-employment restrictions do not apply to this former State employee.

3. If there is a joint hearing with the [Department] and the Governor, the executive agencies or the legislature would I be allowed to testify?

No, not within two years of termination from service. Any appearance by the individual, or attempt to submit testimony, at a joint hearing with the [Department] within two years of termination from service would run afoul of the two year ban. Such activity would constitute an appearance before the former employing State agency or its representatives. One must conclude that a joint hearing will lead to a joint finding or result. The "revolving door" provision, as the Attorney General has stated,

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. (Attorney General Op. No.84 -F20.)
Therefore, even where a joint hearing occurs, co-sponsored by another entity, before the [Department], the two year ban applies.

The lifetime ban also could apply to such a hearing, depending on the subject matter and the purpose of the hearing, regardless of the State officials or agencies involved. However, as stated before, the "revolving door" provisions do not apply to testifying before the Legislature only.

4. If I join or start a non-governmental entity, would that entity or any members of that entity be prohibited from appearing before [the Department]?

As long as the other individuals are not former [Department] employees and are not covered by the "revolving door" provisions of the Public Officers law, they could perform such activities. The entity per se is not governed by the revolving door provisions.

In the event members or employees of the non-governmental entity appear or practice before the [Department], the individual may not perform any of the services for compensation which are used in any such appearance or practicing before the [Department].

If the entity, however, is so identified with the individual, for example, utilizes his name as its organizational name or he is the only principal, we would find that an appearance before the [Department] by such an organization would not be permitted for two years from termination from State service of the individual.2

This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding concerning the individual who requested it and who acted in good faith, unless material facts were omitted or misstated by the individual in the request for an opinion.

All concur:

Elizabeth D. Moore, Chair

Joseph J. Buderwitz, Jr.
Angelo A. Costanza
Norman Lamm
Robert B. McKay, Members

Dated: December 14, 1989


ENDNOTES

1. Subdivision 1(g) of §73 of the Public Officers Law defines "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.

2. If the appearance before [head of the Department] or the [Department] is solely for a ministerial matter, then we would not find such a bar. A "ministerial matter", as defined in §73(1)(d) means "an administrative act carried out in a prescribed manner not allowing for substantial personal discretion."