STATE OF NEW YORK
STATE ETHICS COMMISSION

Advisory Opinion No. 90-23: Application of §73(8) of the Public Officers Law to former State Education Department employees who become superintendents of public school districts or who become superintendents of private schools for deaf or blind students within two years of their termination from State service.

INTRODUCTION

The following advisory opinion is issued in response to an inquiry from the State Education Department ("SED") as to the application of §73(8) of the Public Officers Law to former SED employees who, within two years after their termination of service to SED, accept positions either as superintendents in the New York State public school districts or as superintendents of certain private schools for deaf or blind students.

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 there would be no §73(8) violation for former SED employees to serve as public school superintendents, since public school districts are local government agencies. However, since it is not likely that a superintendent of a private school for deaf or blind students could perform his or her services without appearing, practicing or rendering service for compensation in relation to matters before SED within two years of termination, it does not appear to the Commission that such former SED employees would be able to serve in such superintendent positions without violating §73(8) of the Public Officers Law.

BACKGROUND

Subdivision 8 of the Public Officers Law provides, in relevant part, the following:
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. . . .
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 their employment with a State agency."

Subdivision 8 was amended in 1989 to provide an exemption from the "revolving door" for State employees who are employed by the federal, State or local government or one of its agencies after termination of State service.1 Subdivision 8 of §73 now contains the following language:

[T]his 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.
The 1989 amendment clarified §73(8) by incorporating the determination contained in our prior Advisory Opinion which came to the same conclusion, that the "revolving door" does not apply to government-to-government service.2

Former SED Employees as Superintendents of Public Schools.

The New York State Constitution directs that the Legislature provide for the maintenance and support of a system of free common schools, wherein all the children of the State may be educated.3 Section 3202 of the Education Law mandates that any person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition. The only difference between a public school and a private school is the nature and support of the institution; one is a public institution, organized and maintained as one of the institutions of the State; the other is a private institution, organized and maintained by private individuals or corporations.4

Under §35 of the Civil Service Law, superintendents of New York public school districts are public employees in the unclassified service. For purposes of the Public Employees' Fair Employment Act, a school district or any governmental entity operating a public school is defined as a "government" or "public employer."5 Article 18 of the General Municipal Law, which covers conflicts of interest of municipal officers and employees, defines a municipality to include a school district.6 Also, §18 of the Public Officers Law, which provides for the defense and indemnification of officers and employees of public entities, defines a "public entity" to include "[a] school district, board of cooperative education services, or any other governmental entity or combination or association of governmental entities operating a public school . . . ." (Emphasis added.)

School districts are local government entities, established to carry out the constitutional and legal mandates of the State to provide a free public education through the high school level. A school district constitutes a "local government or one of its agencies" under §73(8), to which the post-employment restrictions do not apply as long as the former State officer or employee is an employee of the district. Therefore, there is no §73(8) violation for former SED employees, who are employed as superintendents by public school districts following their termination of State service, if they appear or otherwise render services in matters before SED within two years of termination.

Superintendents at private schools for the deaf or blind.

Pursuant to §4201 of the Education Law, all institutions for the instruction of the deaf or blind in New York State--public or private--are subject to the jurisdiction of the Commissioner of SED. Many of these institutions are private schools.7 The duties of the Commissioner, as to these State operated or private schools, include the following:

  1. To inquire into the organization of study and methods of instruction employed therein.

  2. To prescribe courses of study and methods of instruction that will meet the requirements of the state for the education of state pupils.

  3. To make appointments of pupils to the several schools, to transfer such pupils from one school to another as circumstances may require; to cancel appointments for sufficient reason.

  4. To ascertain by comparison with other similar institutions whether any improvements in instruction and discipline can be made; and for that purpose to appoint from time to time, suitable persons to visit the schools.

  5. To suggest to the directors of such institutions and to the legislature such improvements as he shall judge expedient.

  6. To make an annual report to the legislature on all of the matters enumerated in this subdivision and particularly as to the condition of the schools, the improvements of the pupils, and their treatment in respect to board and lodging.8

Private schools for the deaf or blind are eligible to receive "state pupils," at least three years of age, who have been residents in the State for one year immediately preceding their application to be classified as a "state pupil." The State appropriates funds to private schools for the deaf or blind for the support of board, lodging, and tuition of "state pupils." The appropriate school district, of which any such pupil is a resident at the time of admission or readmission to any of the private schools for the blind or deaf under the Commission's jurisdiction, is required to reimburse the State on account of any expenditure made by the State on behalf of the deaf or blind "state pupil."

Superintendents of private schools for the deaf or blind, as chief executive officers of their respective institutions, would be responsible for the operation of their school and for ensuring that the mandates of the Commissioner of SED were met. The fact that these private schools are closely regulated by SED would inevitably place the superintendent, or his designee, in a position where, within two years of termination, he would have to appear before SED or render services for compensation in relation to a matter before his former State agency.9

The private schools for the deaf or blind, although closely regulated by the State and recipients of public funds, are not local governments or agencies of State or local governments for purposes of the exemption to the "revolving door," contained in §73(8). Such private institutions stand in no different stead than other private schools or colleges, universities or other entities, which may also receive State financial aid. While the private schools may carry out many, if not all, of the functions of a public school district as to the instruction of deaf or blind students, they remain private institutions subject to their own board of directors or trustees and are private employers for purposes of the laws of this State.

Employees of the private schools for the deaf or blind are not subject to the same collective negotiating provisions of the Public Employees' Fair Employment Act (the "Taylor Law"), the conflicts of interest provisions for municipal employees, as provided for under the General Municipal Law, or the indemnification provisions of the Public Officers Law, as are the employees of public school districts. Therefore, the Commission concludes that employment with a private school for the deaf or blind is not included within the exception to the "revolving door" provision.10 A former State officer or employee, who is employed by such a private school, is subject to the prohibitions contained in §73(8).

CONCLUSION

The post-employment restrictions of §73(8) do not apply to former SED employees who may become superintendents of public school districts within two years of their termination from State service, since they would be employed as public employees. However, it appears that a violation of §73(8) of the Public Officers Law, in the two-year post-employment period, could not be avoided if former SED employees serve as superintendents of private schools for the deaf and blind, since the job requirements for the position of superintendent would require prohibited appearances or rendition of services for compensation on matters before SED.

This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding concerning the person who required 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
Donald A. Odell, Members

Dated: November 15, 1990

ENDNOTES

1. See §2, Chapter 242 of the Laws of 1989, effective July 1, 1989.

2. See Advisory Opinion No. 89-5.

3. New York State Constitution, Article 11, §1.

4. See 52 NY Jur §1.

5. See §200 et seq. of the Civil Service Law.

6. See §800 et seq. of the General Municipal Law.

7. The institutions for the deaf or blind in New York State are the following:

  1. State operated: the New York School for the Deaf; New York State School for the Blind in the City of Batavia.

  2. Private: the Lexington School for the Deaf; St. Mary's School for the Deaf in the City of Buffalo; the Central New York School for the Deaf in the City of Rome; St. Joseph's School for the Deaf in the City of New York; New York Institute for the Education of the Blind in the City of New York; Lavelle School for the Blind in the City of New York; Mill Neck Manor School for the Deaf in Nassau County; St. Francis DeSales School for the Deaf and Hard of Hearing in the County of Kings; and Cleary Deaf Child Center, Inc. in the counties of Suffolk and Nassau.

8. Education Law, §4201(2).

9.The Commission has confirmed that the nature of the job responsibilities of a superintendent of a private school for the deaf or blind would require such services that it would be very difficult for a former SED employee, hired as a superintendent, to completely screen himself from all activities involving matters before the SED, which are proscribed by §73(8).

10. This conclusion does not apply to the two State operated schools for the deaf or blind, the employees of which are State employees, who are subject to the Ethics in Government Act of 1987.