STATE OF NEW YORK
STATE ETHICS COMMISSION

Advisory Opinion No. 89-13:

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 an inquiry from an individual who is a former State employee to determine the application of the post-employment restrictions of §73(8) of the Public Officers Law to certain described circumstances.

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 employee.

BACKGROUND

The requesting individual served as a [policy-maker] in the Office of the Governor since 1983. In that capacity, the individual oversaw the operations of [ ] within the Office of the Governor. [ ]

Now the individual serves as president of the [Company]. In his letter of inquiry, the individual described the entity as offering strategic [ ] planning to clients which include private for profit and not-for-profit firms, organizations who currently or plan to do business in New York State, and other areas. [Company] determines the extent of [ ] consumer market for services; media strategy for clients; outreach requirements to business and civic leaders, including elected officials, etc., for clients.

The individual submitted a summary of prospective clients, a description of the services expected to be performed and a list of the appointed and elected public officials with whom he intends to interact on their behalf.1 In each case, the individual states that he would not appear before the Governor, his staff or any constituent office or agency of the Executive Department.

APPLICABLE LAW

Subdivision 8 of §73 of the Public Officers Law provides, in pertinent 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 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.

DISCUSSION

In order to determine the application of the two year bar in this case, the Commission must determine the State agency from which the employee terminated. As [a policy-maker], the individual served in the Office of the Governor or the Executive Chamber, created by Article 2 of the Executive Law. The Executive Chamber is an entity separate and distinct from the Executive Department, which was established by Article 3 of the Executive Law, with the Governor as its head. There are a multiplicity of entities established within the Executive Department,2 but the Executive Chamber is not among them.

For purposes of this inquiry, the Commission concludes that the agency from which the individual terminated is the Executive Chamber, a State agency separate and distinct from the Executive Department or any of its constituent entities.

Therefore, the individual may not, for two years after [the date of termination], appear or practice or render services for compensation before the Executive Chamber or any of its officers or employees, on behalf of any person, firm, corporation or association in relation to any case, proceeding, application or other matter before it.3 The individual has asserted that none of his proposed appearances on behalf of clients will be before the Governor, his staff or, even, any of the entities constituting the Executive Department. As such, the two-year bar contained in §73(8) would clearly be met.

What remains to be determined is whether the lifetime restriction of §73(8) before any State agency4 applies to the individual with respect to his proposed clients and services to be rendered.5 The individual asserts that no activities bound by the "lifetime bar" would be involved in his work with the listed clients. Given the descriptions of proposed clients and services contained in Appendix 1, and only as relates to them, and the assertion of the requesting individual, the Commission concludes that the services the individual proposes to perform appear to be sufficiently distinct from any of his former responsibilities as a State officer and should not involve him in transactions in which he personally participated and was directly concerned or which were under his active consideration during his tenure as a State employee; therefore the lifetime restriction contained in §73(8) would not bar him from engaging in those activities.

No such conclusion may be drawn concerning other services not described therein. The lifetime restriction set forth in §73(8) precludes a former State employee from appearing, practicing, communicating or otherwise rendering services before any State agency or receiving compensation for any such services 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 during his period of employment. Therefore, any other activities in which he may engage with any State agency would have to be reviewed under this standard.

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.
Angelo A. Costanza
Norman Lamm
Robert B. McKay, Members

Dated: December 14, 1989


ENDNOTES

1. See Appendix 1.

2. The Executive Department contains the Office of the Governor and a number of Divisions, Offices, Boards, Commissions, Councils and Agencies. Each of these provides policy advice and assistance to the Governor and conducts activities in accordance with statute. A sampling of entities within the Executive Department includes the Division of the Budget, the State Police, the Office of Employee Relations, the Office of General Services, the Consumer Protection Board, the Cable Television Commission the Council on the Arts and the Adirondack Park Agency.

3. The Commission's Advisory Opinion 88-1 determined that the new post-employment restrictions of §73(8) which became effective January 1, 1989 apply to individuals who terminated from State service before January 1, 1989, but only with respect to activities undertaken by those former state officers and employees on and after January 1, 1989. That Advisory Opinion was challenged in two separate lawsuits: Forti v. NYS Ethics Commission (147 A.D. 2d 269) and Kuttner, et al. v. Cuomo, et al.(147 A.D. 2d 215). In Forti, the Supreme Court granted summary judgment declaring §73(8) unconstitutional in violation of the 14th amendment and the NYS Constitution. In Kuttner, the Supreme Court granted a preliminary injunction restraining the application of the Advisory Opinion. On appeal, the Appellate Division, Third Department, reversed both of the lower court's decisions and upheld the statute and the Commission's Advisory Opinion. As a result, the Commission is applying the revolving door provisions to former State employees, who like the requesting individual, left State service prior to January 1, 1989. Both cases are scheduled to be argued before the Court of Appeals in February 1990. A motion for a stay of enforcement of the Advisory Opinion was denied by the Court of Appeals in both the Forti (Mo. No. 965) and Kuttner (Mo. No. 1392) cases. Pending the outcome of the appeal, the Commission shall continue to enforce its Advisory Opinion and apply the §73(8) proscriptions to former State employees who left prior to January 1, 1989.

4. The term "State agency" as defined in §73(1)(g) of the Public Officers Law means 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. Many of the entities before which the requesting individual intends to appear are outside the coverage of the post-employment restrictions of §73(8); e.g., the Port Authority of New York and New Jersey, the New York State Legislature and the New York City government.

5. In addition to his service as [policy-maker], the requesting individual served in the following state positions: [ ].


APPENDIX 1

[ ] Communications:

The client is attempting to market its educational program [ ] to schools in New York State. [ ].

The officials or entities before which the individual would appear includes the Board of Regents, Chair. State Education Commissioner (sic), Chair. State Assembly Education Committee, Chair. Senate Education Committee, SUNY Trustees, SUNY Chancellor, NYC Board of Education, NYC CHair Council Education Committee, NYC Community School Districts, Office of the NYC Mayor, US Department of Education--Regional Office NYS, US Congressional Delegation from NYS, NYS Attorney General, NYS Comptroller, NYS Legislature, and the School Construction Authority.

2. [ ] Hospital:

The client requires a comprehensive public relations strategy to enhance its fund raising efforts in the public and private sector and in promoting exchanges of information, training and program services. Areas of activity, in addition to New York State, include [ ].

[ ].

Officials or entities before which the individual would appear include the NYC Mayor's Office, NYC Council, NYC Council President, NYC Comptroller, Borough Presidents, NYS Legislature, NYS Attorney General, NYS Comptroller, NYS Congressional Delegation, US Department of Health, NYC Department of Health, [ ].

3. [ ]:

The client is seeking to expand its services in the structuring of financings in various project areas for state, county and municipal issuers of tax exempt debt. [ ].

Officials or entities before which the individual would appear include the following NYS Authorities: Urban Development Corporation, State of New York Mortgage Agency, Housing Finance Agency/Medical Care Facilities Finance Agency, Power Authority, Battery Park, Long Island Power Authority, School Construction Authority, Dormitory Authority, Facilities Development Corporation, Environmental Facilities Development Corporation, Public Service Commission, Port Authority of New York/New Jersey; the NYS Legislature, the NYS Comptroller, the NYS Attorney General, the NYS Congressional delegation, the NYC Government, County governments, [ ].

4. [ ]:

This client is seeking to reach consumers [ ] on the east coast to provide [ ] telephone services.

[ ].

Officials and entities before which the individual intends to appear include the NYS Legislature, Attorney General, Comptroller, Public Service Commission, NY/NJ Port Authority, NYC Government, NYS Congressional Delegates, Urban Development Corporation, Federal Communication Commission, [ ].