New York State
Ethics Commission


Advisory Opinion No. 91-17: Application of the post-employment restrictions of Public Officers Law §73(8) to a former employee of the Department of Transportation who anticipates future contact with his former employing State agency.

Introduction

The following advisory opinion was requested on July 15, 1991, on behalf of a former employee of the New York State Department of Transportation ("DOT") and a prospective employer of the former employee concerning application of Public Officers Law §73(8). Specifically, the request concerns whether or not a former employee who was not a policymaker may engage in private-sector employment which will require contact with his former employing State agency.

Pursuant to the authority vested in Executive Law §94(15), the State Ethics Commission ("Commission") hereby renders its opinion that the two-year bar of the "revolving door" provision of Public Officers Law §73(8) applies to all former State employees without regard to level of responsibility or exercise of discretion assigned to their former State position. Likewise, the lifetime bar prohibition applies to former State employees without regard to level of responsibility or exercise of discretion assigned to their former State position.

The Commission believes that by submitting a resume to a State agency for approval to work on a bid project within two years of termination of State service from that State agency, the former employee has appeared in violation of Public Officers Law §73(8).

Background

The Commission received letters on April 22 and 24, 1991, from a private engineering and contracting firm requesting an informal advisory opinion on the application of Public Officers Law §73(8) to a former State employee whom the firm wishes to hire. On May 13, 1991, the former employee made a similar request. On July 1, 1991, the Commission issued an informal advisory opinion which concluded that the former employee, by submitting his resume for approval by DOT to work on the bridge inspection project, had "appeared" in violation of Public Officers Law §73(8). In addition, the Commission advised that the duties of the position of the private sector position included other "appearances" which, if made within two years of termination of State service, would constitute additional violations of §73(8).

The former employee who is the subject of this opinion was employed by DOT as a Laborer, Grade [6](1) from June 1987 until December 1990 to perform "various duties pertaining to the inspection of State-owned bridges."(2) He terminated State service upon expiration of his seasonal position.(3) According to his resume, he was responsible for assisting bridge inspection teams perform functions such as inventory measurements, cross section channel readings, scour readings and sketching, photographing various elements of bridge superstructure, verification of bridge plans, recording and photographing safety and structurally flagging conditions, magnetic particle and dye penetrant testing, ultrasound thickness gauge usage, sounding of concrete elements, various traffic control elements, and other aerial equipment. His resume states that he filled in for the Assistant Team Leader on the Bridge Inspection Team when that assistant was absent. He stated that he did not exercise substantial discretion in the performance of any of his DOT job duties.

According to a letter submitted to the Commission by his prospective employer, the former employee responded in April 1991 to a newspaper advertisement for a local bridge inspection team and is being considered for the position of Assistant Team Leader on a private sector bridge inspection team. The firm which wishes to employ the former employee has a current contract with DOT to perform local bridge inspections and intends to assign him to the contract work.

The inspections are performed by inspection teams which generally consist of a minimum of two employees. Larger teams are used for difficult traffic situations or when inspecting unusually large bridges. Each inspection team employs an Assistant Team Leader who must have a degree in Civil Engineering or three years of experience in bridge design, inspection or construction acceptable to the State.

The prospective employer is required to submit for approval by DOT resumes of all prospective Assistant Team Leaders, according to Schedule A of the firm's contract. The prospective employer submitted the resume of the former employee for approval. On April 19, 1991, DOT responded to the firm that it had completed its review of the former employee and had given approval for the former employee to act as Assistant Team Leader on the Region 9 bridge inspection project.(4)

Discussion

The Ethics in Government Act of 1987 contained sweeping reforms to the post-employment restrictions which had previously existed in Public Officers Law §73.(5) According to the memorandum of support for the legislation in 1987, the Governor stated that the Ethics in Government Act is designed to limit opportunities for abuse of official positions and eliminate any appearance of undue influence. By itscomprehensive provisions, the Act reaches almost all State government officials and employees.

Public Officers Law §73(8), commonly called the "revolving door," pertains to the facts presented herein. The specific purpose of the "revolving door" section is to preclude the possibility that a former State employee may leverage his or her knowledge, experience or contacts gained after leaving State service to his or her advantage or that of a client, thereby securing unwarranted privileges, consideration or action.(6)

In an opinion issued before the Ethics in Government Act's reforms, the Attorney General viewed the "revolving door" section of the Public Officers Law as addressing "the ethics problems that arise when a State employee leaves State service to work in the private sector." According to the Opinion of the Attorney General, the "revolving door" limitation seeks to eliminate any public doubt whether actions by the former State officer or employee prior to separation from State service were in the public interest.(7)

The post-employment restrictions which comprise the "revolving door" are two-fold. One component is the two-year bar and the other is the lifetime bar. Section 73(8) which contains both components states:

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 . . .

Section 73(8) 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. It bars former State officers or employees for two years 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 the agency.

The application of the lifetime bar is not limited to high level State officials or employees. The lifetime bar applies to former employees without regard to relative level of responsibility. Nothing in the statute, as cited above, limits the application of either provision according to the level of responsibility or the exercise or discretion which is required by the State job from which the employee terminated State service. In the absence of any indication to the contrary, we must conclude that the two-year bar and the lifetime bar both apply universally because the opportunity to develop contacts, gain knowledge or experience or otherwise use State service as a training-ground for private sector work is not limited to those in the top-levels of government.

In the case before the Commission, the "evils" addressed by the revolving door provisions are squarely presented. A former DOT employee seeks to use the knowledge he gained in public sector employment for private gain from a contract with his former agency. After learning how to perform bridge inspections while working for the State, he wants to inspect bridges for a private firm pursuant to a contract with his former State employer.

The prospective employer submitted his resume for approval to the State agency from which he just terminated service. If the former employee knew or could reasonably have expected that the employer was submitting his resume to DOT for approval to work he is guilty of a knowing and wilful violation of the Public Officers Law. The appearance that he used contacts made at DOT to gain approval of his resume to participate in the bridge inspection project is unavoidable.

It is of no consequence that this former employee did not exercise substantial discretion in his former position. He was capable of developing relationships with other DOT employees during his four years of employment with the agency which could lead to favorable treatment or undue consideration upon submission of his resume for approval. The letter from his counsel suggests that he was just a "pick and shovel" worker. According to the former DOT employee, that clearly is not the case--he assisted DOT inspection teams and, in this private job, would perform similar duties. The unfavorable impression which results when a former employee uses State employment for private benefit gained from his former agency is exactly the reason the Ethics in Government Act was originally enacted.

Based upon the foregoing the Commission makes the following findings and recommendations. The Commission believes that if the former employee had knowledge that his prospective employer was submitting his resume to DOT for approval to work on the bridge inspection project within two years of termination of State service the former employee appeared before DOT in violation of Public Officers Law §73(8). The Commission finds that if the former employee performs the duties of the position for which he has applied he will have appeared before and received compensation for services rendered on a matter before his former State agency within two years of his termination of State service in violation of the Public Officers Law. The facts do not evidence a lifetime bar violation, however, the individual must be aware that he may not appear, practice, communicate or receive compensation for services rendered with respect to any case, application, proceeding or transaction regarding bridge inspections or any other projects in which he personally participated and was directly concerned or which were under his active consideration while employed by DOT.

The Commission shall inquire into the circumstances under which DOT approved the former employee to assume the position of Assistant Team Leader to determine if a violation of the revolving door provisions of Public Officers Law §73(8) occurred.

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

Dated: September 16, 1991


Endnotes

1. According to an employee of the DOT Office of Human Resources, the salary of a Grade 6 Laborer during the period of employment for this former employee was approximately $18,000 per year.

2. From a letter of May 13, 1991, sent to the Commission by the former employee.

3. The Commission has not previously addressed in a formal opinion the application of the post-employment restrictions to seasonal employees. In an informal opinion, the Commission concluded that Public Officers Law §73(8) does not expressly permit an exception for seasonal employees. The Commission concluded that because the employment of a seasonal employee is not casual or occasional, because the seasonal employee is considered to have a "primary status" as a public employee, and because the seasonal employee is eligible for certain benefits and privileges which are commensurate with State employment, the Commission should not distinguish between a seasonal and a permanent employee for the purposes of applying the post-employment restrictions.

4. The resume which was submitted to DOT for review showed the former employee's employment with DOT in Region 9 from June 1987 until December 1990.

5. The Ethics in Government Act was enacted pursuant to Chapter 813 of the Laws of 1987, effective January 1, 1989, and amended by Chapter 108 of the Laws of 1988 and Chapter 242 of the Laws of 1989.

6. Advisory Opinion No. 90-19.

7. 1984 Op. Atty. Gen. 20.



URL: http://www.nysl.nysed.gov/edocs/ethics/91-17.htm