|Advisory Opinion No. 91-22:||Application of the post-employment restrictions of Public Officers Law §73(8) to a former employee of the Department of Transportation.|
Pursuant to its authority under Executive Law §94(15), the State Ethics Commission ("Commission") hereby renders its opinion that the two-year bar of the "revolving door" and the lifetime bar do not apply to prohibit any of the post-State service activities proposed by the requesting individual. The requestor is advised to abide by the net revenues rules explained in this opinion.
At the time of his request, the requesting individual was employed by DOT as a [title]. He states that he has worked for four years in the "bridge office" in [city A] and six months in the "highway design" office in [city B] and that he did not work on any New York State Thruway Authority projects while employed at DOT.
The individual indicated that he may receive a job offer from a transportation consulting firm which has bridge contracts with the Thruway Authority. The firm would like to assign him to work on those contracts. He states that the particular branch of the firm in which he would be working currently has no contracts with DOT.
The duties which the requesting individual anticipates performing for the firm are bridge and highway design, existing structure rehabilitation design, bridge and highway report writing and, possibly, bridge and highway inspections. He states that his duties will be limited to performing engineering work necessary to rehabilitate Thruway Authority structures and highways.
The requesting individual states that he expects to have no professional contact with DOT for at least two years following termination of State service. He indicates that in such possible future employment he would be involved with no project on which he worked while employed by the State. Although the firm has contracts with DOT for bridge and highway design and plans to bid on future DOT contracts, he does not anticipate any involvement in that contract work.
In Advisory Opinion No. 89-12, the Commission held that the two-year bar of Public Officers Law §73(8) applies only to an individual's former State agency and not to other State agencies. Therefore, the requesting individual may not appear, practice or render services in any matter before DOT for two years. He may engage in such activities before the Thruway Authority unless restricted by the lifetime bar discussed infra.
In Advisory Opinion No. 89-13, the Commission concluded that, if the services the individual proposes to perform appear to be sufficiently distinct from any of his or her former responsibilities as a State officer and do not involve him or her in transactions in which he or she personally participated and was directly concerned or which were under his or her active consideration during his or her tenure as a State employee, §73(8) would not ban the individual from engaging in those acts. Therefore, as long as the requesting individual engages in no activity with regard to any case, application, proceeding or transaction with which he was directly concerned and personally participated or which was under his active consideration while with the State, he will not violate the lifetime bar.
The former employee may not receive any benefit from his firm's appearing before his former agency even though he himself will not appear. Public Officers Law §73(10) provides that a former State employee may be employed by a firm which does business with his former agency as long as he does not share in the revenues which are generated by the restricted activities. Section 73(10) states, in relevant part:
Nothing contained in this section, the judiciary law, the education law or any other law or disciplinary rule shall be construed or applied to prohibit any firm, association or corporation, in which any present or former . . . state officer or employee . . . is a member . . . from appearing, practicing, communicating or otherwise rendering services in relation to any matter before, or transacting business with a state agency, or a city agency . . . where such . . . state officer or employee . . . does not share in the net revenues, as defined in accordance with generally accepted accounting principles by the state ethics commission. . . .
Advisory Opinion No. 90-14 interpreted this subdivision of the Public Officers Law as follows:
[P]ursuant to the Commission definition of the term net revenues, even if one member or associate of a firm is disqualified from appearing before his or her former agency, other members or associates of the firm would not be disqualified from engaging in the matter, as long as the distribution of net revenues from State-related activities is in accordance with §73(8) and this Advisory Opinion. As described below, a firm must insure that the "screened" individual does not share in the net revenues earned as a result of the firm's participation in the State related matter.
Applying the Commission's definition of net revenues to individuals compensated on an hourly or per diem basis is a simple matter. The individual is compensated only for his or her work on matters in which he or she is not disqualified and from revenues obtained from such matters. No further calculations would be required.
An otherwise disqualified individual, who is compensated strictly on a fixed wage or salary basis receives no bonuses or other extra compensation, may be paid in part from revenues derived from a "screened" matter. However, the fixed salary of the disqualified individual must bear a reasonable relationship to the work performance and to the salary paid for such a position in that organization and in the general field, and be paid not only from "screened" fees, but from all gross revenue received. The issue of fixed salary will be less likely to produce concern if the "screened" fees earned are low, relative to all the fees generated by the firm, and the percentage devoted to such fixed salaries, therefore, is also low.
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 or related supporting documentation.
Joseph M. Bress, Chair
Angelo A. Costanza
Donald A. Odell, Members
Dated: December 3, 1991