STATE OF NEW YORK
STATE ETHICS COMMISSION

Advisory Opinion No. 90-12:

Determination of "former agency" for purposes of application of §73(8) to a State employee after termination from State service.

INTRODUCTION

The following advisory opinion is issued in response to an inquiry from a State employee regarding the application of the post-employment restrictions contained in §73(8) of the Public Officers Law to appearances the individual anticipates making before a State agency from which he obtained a leave of absence without pay and from which he has not yet terminated. While on leave of absence from the first State agency, the employee has been employed by a State Commission.

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 that the two-year absolute bar on appearing, practicing or rendering services for compensation on behalf of any corporation in relation to any case, proceeding or application or other matter before an individual's former employing State agency, contained in §73(8), applies to both the individual's original State agency, from which he received a leave of absence, and to his present employer, the State Commission.

BACKGROUND

The Commission received a request for an opinion concerning whether the post-employment restrictions contained in the Public Officers Law prohibit a former State employee, after termination from State service, from (1) accepting employment with firms or clients under contract or subcontract with the [State Commission], a temporary State Commission where he currently receives his salary; (2) representing clients before the [State agency], from which the State employee has been on a "leave of absence" for the past two years; or (3) employment with a private firm that anticipates future involvement with his current employer, the [State Commission].

Section 73(8) of the Public Officers Law provides, in relevant part, that:

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 . . . .
As the Commission noted in its Advisory Opinion No. 88-1, subdivision 8 of §73, generally referred to as the "revolving door" provision, "sets the ground rules for what individuals may do with the knowledge, experience and contacts gained from public service after they terminate employment with a state agency." Those ground rules are intended to prevent former State employees from using their prior experience to gain unfair advantage with their former agency for the benefit of private clients, to limit opportunities for abuse of their official position and to eliminate any appearance of undue influence.

For purposes of determining the application of 73(8), the Commission has concluded that the [State Commission] is a "state agency," subject to its jurisdiction. Subparagraph (g) of §73(1) defines the term "state agency" to mean:

[a]ny 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 . . . (Emphasis added.)
The [State Commission] was established in response to a federal directive. All members of the [State Commission] are appointed by the Governor.1 In order to carry out its duties, the [State Commission] is empowered to hire or contract with such persons as it deems necessary. As found in [cite deleted]:
Officers and employees of the [State Commission] shall be appointed in accordance with civil service rules; provided, however, that officers and employees of state departments and agencies may be transferred to the commission without examination and without loss of any civil service status or rights. Each employee who is transferred pursuant to this subdivision is deemed to be on leave of absence from his or her former position during the tenure of the commission. No such transfer, may, however, be made except with the approval of the head of the state department or agency involved, the director of the budget and chairman of the commission, and in compliance with the rules and regulations of the civil service commission of the state.
Since its inception, the [State Commission] has conducted hearings, issued reports and made recommendations concerning the problem of [ ] in the State.

There is no question that [State agency] is a "state agency" under §73(1)(g), and its employees are State employees as defined in §73(1)(i)(iii).

DISCUSSION

The question to resolve first is whether the post-employment restrictions apply both to appearances, etc., before the agency from which the employee received a leave of absence, as well as before the State agency, his employer during that absence.

Section 73(1)(i) defines the term "state officer and employee" to include:

(iii) officers and employees of state departments, boards, bureaus, divisions, commissions, councils or other state agencies other than officers of such boards, commissions or councils who receive no compensation or are compensated on a per diem basis; and

(iv) members or directors of public authorities, other than multi-state authorities, public benefit corporations and commissions at least one of whose members is appointed by the Governor, who receive compensation other than on a per diem basis, and employees of such authorities, corporations and commissions.

The individual who is the subject of this inquiry is a "state employee" for purposes of §73 by virtue of his employment by a commission at least one of whose members is appointed by the Governor and his employment with [State agency], from which he is on leave.

The individual argues that a person on "leave of absence" from a State agency is not an employee of that agency for purposes of the Public Officers Law and that, consequently, the two-year prohibition found in §73(8) begins with the employee's commencement on leave of absence status from that agency.

The State Civil Service Commission, pursuant to authority contained in §6 of the Civil Service Law, has issued regulations covering leave without pay for State employees. A permanent employee may, in the discretion of an appointing authority, be granted a leave of absence without pay for a period not exceeding two years. Such leave may be extended beyond two years with the approval of the Civil Service Commission. The person is under no obligation to return to State service; however, the leave of absence is predicated upon the return of the employee and protects his or her right to employment during that leave.

The option to return to a position vacated by a leave of absence continues the employment of that individual in that agency, although he or she may continue in an unpaid status.2 In fact, upon the employee's return from the leave of absence, he or she is due the appropriate increases to salary which that position has accrued during that time. [Cite deleted] was enacted to protect those State officers or employees who were transferred to the [State Commission] from being terminated from their transferring State agency or from being requested to so terminate. That section preserves the employment rights of such transferees with their former State agency and prohibits their termination. That provision was created to encourage State employees to transfer to employment with the [State Commission] and, if the requesting individual had wanted to commence the §73(8) two-year period after termination from [State agency], at the time he went to the [State Commission], he could have terminated his position from [State agency], even though [the law] guaranteed him a leave of absence from such a transfer. Since no termination from State service has yet occurred from any State agency, the "revolving door" provision cannot begin for either State agency herein.

Further, because of [the law], the individual herein could terminate his employment at the [State Commission] and not his right to return to full employment in his prior position with [State agency]. It is obvious that, without such protection, individuals would be less inclined to leave a permanent position with a State agency and accept employment with the [State Commission], a State agency with a temporary life and, therefore, temporary future employment. The individual herein unlikely would have accepted a position with the [State Commission] if he was not guaranteed the right by statute to return to [State agency].

Section 73(8) of the Public Officers Law was enacted to deter persons employed by the State of New York from taking advantage of their public position to secure personal gain at the State's expense. The Ethics in Government Act sought to restore the public trust in State government by limiting opportunities for abuse of official positions and by eliminating any appearance of undue influence. It is not uncommon for persons employed by the State of New York to serve the State in dual capacities. Such service is not precluded as long as the employment or affiliation "is not in substantial conflict with the proper discharge of (a person's) duties in the public interest." (Public Officers Law, §74(2).) The provisions of the Ethics Law apply to a person serving in such dual capacities and the "revolving door" provision, at termination, applies to that individual's appearances, etc., before each of the agencies from which he or she terminated.

The revolving door provision does not apply until the individual terminates his or her State service.3 The Attorney General, in interpreting the previous revolving door provision contained in former §73(7) of the Public Officers Law, stated that the purpose of the subdivision was to "address the ethics problems that arise when a State employee leaves State service to work in the private sector." (Att'y Gen. Op. No. 84-F20 and 84-F12.) The subdivision seeks to "eliminate any public doubt as to whether actions by the officer or employee prior to separating from State service were in the public interest." (Att'y Gen. Op. No. 84-F20.)

CONCLUSION

For the purpose of §73 of the Public Officers Law, a State employee on leave without pay is still in service with the State agency from which such leave is received and remains so until the employee has terminated employment with that State agency. In the instant case, while on leave of absence from [State agency], the affected employee also served as an employee of the [State Commission]. Therefore, the two-year post-employment restrictions apply to the former employee with respect to [State agency], the original employing State agency from which he is on leave, and the [State Commission] from the date of such termination from each State agency.4

The post-employment restrictions of the Public Officers Law do not altogether prohibit a former State employee, after termination from State service, from accepting employment with firms or clients under contract or subcontract with an individual's former agency. The key is whether the former employee is receiving compensation for services performed in relation to any matter before his former agencies within two years of the termination of his employment. Should the individual here become employed with firms who now or in the future contract with his former agencies, he is prohibited from receiving compensation for any services rendered in those matters or appearing or practicing before either State agency for two years.

An employee who is offered employment or seeks employment with contractors of his employing State agency could be, depending upon the facts, in potential violation of §73(5) or §74. A State employee, subject to the Ethics Law, must be careful in solicitations for employment from contractors with his or her agencies. Appearances of impropriety may occur if conclusions can be reached that an offer of employment was a reward for certain actions taken or to be taken by the employee. Immediately upon solicitation of employment by a State officer or employee to or from a contractor with the employing State agency, the individual should inform his or her appointing authority and recuse himself or herself from official actions with such contractors.

In addition, the lifetime bar applies in relation to any matter in which the former employee was directly concerned and in which he personally participated during his employment with the [State Commission] or [State agency], or which was under his active consideration during that time. If he was involved in any specific [State Commission] study, which is currently, or in the future, to be handled by his anticipated employer, the lifetime bar totally prohibits his involvement in any of those projects in any capacity and with regard to all State agencies.

This opinion, until and unless amended or revoked, shall be 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 opinion.

All concur:

Elizabeth D. Moore, Chair

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

Dated: June 21, 1990


ENDNOTES

1. [Cite deleted]

2. See Advisory Opinion No. 90-1 in which the Commission held that subdivision 7, not subdivision 8 of §73 applies to State employees on leave of absence status, since those employees are still in "state service."

3. If an individual terminated from a State agency and remained as an unpaid or per diem appointee of another State agency, the "revolving door" would apply to him or her as to the State agency from which the termination occurred, except for official appearances to fulfill those State duties as unpaid or per diem appointee.

4. The employee would have to terminate his service from both State agencies to avoid the application of §73(7) of the Public Officers Law, which bars certain compensated appearances before State agencies by State officers and employees. Section 73(7) applies to State employees who continue in State service.