New York State
Ethics Commission


Advisory Opinion No. 91-6: Application of the post-employment restrictions of §73(8) of the Public Officers Law to a former Department of Taxation and Finance Auditor who anticipates future contact with his former employer.

Introduction

The following advisory opinion was requested by a former Auditor with the New York State Department of Taxation and Finance ("Department") concerning the application of §73(8) of the Public Officers Law ("POL"). Specifically, the request concerns the application of §73(8) to the following post-employment activities: (1) representation of an out-of-state client at an out-of-state location during an audit by the Department and (2) representation of a client at a hearing before a Department conciliation conferee.

Pursuant to the authority vested in its by §94(15) of the Executive Law, the State Ethics Commission ("Commission") Commission hereby renders its opinion that the §73(8) two-year absolute bar on appearing, practicing or rendering services for compensation on behalf of any person, firm, etc. in relation to any case, proceeding or application or other matter before an individual's former employing State agency applies to any representation a former employee may make before his former agency for himself or on behalf of any client regardless of the location of such appearance. Further, such prohibition against appearances applies to any representations made on behalf of a client at hearings conducted by a conciliation conferee.

Applicable Law

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 of 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.

Section 170(3-a) of the Tax Law provides:

There shall be in the division of taxation a bureau of conciliation and mediation services which shall be responsible for providing conciliation conferences. Such conferences shall be provided, at the option of any taxpayer or any other person subject to the provisions of this chapter or any other provision of law relating to administration of taxes, where such determination of tax due, a tax deficiency, a denial of a refund or credit application . . . or any other notice which gives rise to a right to a hearing under this chapter if the time to petition for such hearing has not elapsed. Such notice shall contain information advising the recipient of the right to have a conciliation conference. (Emphasis added.)

Discussion

The Commission has been requested by a former State employee to determine whether the post-employment restrictions contained in the Public Officers Law apply to two sets of circumstances involving him and his former agency. The employee served as an Auditor with the Department before leaving State service for private practice. In his request to the Commission, the former employee (1) seeks to represent an out-of-state client at an out-of-state location during an audit by the Department and (2) would like to represent a client at a hearing before a conciliation conferee.

Representation of out-of-state client at out-of-state location

_______Section 73(8) of the Public Officers Law is generally referred to as the "revolving door" provision, for it 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. In short, the law bars former State officers and employees for two years after termination from appearing or practicing before their former agencies or receiving compensation for any services rendered in relation to any case, proceeding, application or other matter before such agency. No reference is made in the statute to either the location of the client employing the former employee or the location of the State agency and/or its activity.

The enactment of the "revolving door" provision was part of a sweeping reform in New York's conflict of interest and financial disclosure laws intended "to restore public trust and confidence in government." (Governor's Memorandum, on approving Chapters 813 and 814 of the Laws of 1987.) The law limits certain post-employment activities of officers and employees of the State of New York to avoid the possibility of their exercising undue influence over colleagues and associates who remain in office in matters pending before those agencies. 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." (1984 Op. Atty. Gen. 20; 1984 Op. Atty. Gen. 12.) 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." (1984 Op. Atty. Gen. 20.)

The former employee in this case has attached significance to the fact that his only contact with the Department would be at an out-of-state location. Nothing in §73(8) limits its application because of the location of clients who are the subjects of State agency proceedings or the venue of such proceedings. Consequently, the Commission attaches no significance to the location of a client or a proceeding when considering the applicability of the law. What is significant is that there is a matter before the Department and participation by the former employee within two years of the former employee's termination from State service is prohibited by §73(8).

The Conciliation Conference

The requestor has asked whether he may represent a client at a hearing before a conciliation conferee. To resolve certain issues arising out of the Department's activities, a taxpayer or other persons subject to the Tax Law may request a conciliation conference with Department representatives during the early stages of a tax dispute. This meeting is conducted by a conciliation conferee, an employee of the Department located in the Department's bureau of Conciliation and Mediation. A party may appeal to the Tax Appeals Tribunal, an independent quasi-judicial body whose mandate requires an impartial hearing and result. Subsequent to exhausting all administrative remedies, appeal is to the New York Court system. The language of §107(3-a) is clear: conciliation conferences are matters before the Department, the requesting individual's former agency. It is also clear that Public Officers Law §73(8) prohibits the appearance of a former Department employee for a period of two years after his or her termination from State service from representing a client at a conciliation conference conducted by the Department.

The provision of accounting services to a private client by a former State employee is not, in and of itself, prohibited. The Public Officers Law §73(8) post-employment restrictions are only applicable if the appearance is before one's former agency. However, it must be made clear that a former agency comprises all its constitute units, e.g., commissions, departments, bureaus, etc. as set forth in the enabling statute of that agency.

Conclusion

Upon such termination from State service an employee is prohibited for a period of two years from the date of that termination from appearing before his employing agency and any of that agency's departments, bureaus or other subdivisions. Further, the post-employment proscriptions of Public Officers Law §73(8) apply to all appearances before one's former agency regardless of the location of the client of such former employee and regardless of the location of the appearance itself. Finally, a former employee is prohibited from appearing before any State agency in any matters in which he was directly concerned and personally participated or which were under his active consideration while in service to that agency.

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 opinion.

All concur:

Joseph M. Bress, Chair

Angelo A. Costanza
Norman Lamm
Donald A. Odell, Members

Dated: May 21, 1991


URL: http://www.nysl.nysed.gov/edocs/ethics/91-06.htm