|Advisory Opinion No. 92-7:||Application of the lifetime bar provision of Public Officers Law §73(8) to a former State officer who wishes to be retained by a public employees' organization engaged in contract negotiations with the officer's former State agency.|
The following advisory opinion is issued in response to an inquiry whether the former chair and acting executive director of [a public authority] may be retained by the [public employees' organization] in contract negotiations with the [public authority].(1)
Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by Executive Law §94(15), the Commission hereby renders its opinion that the lifetime bar provision of Public Officers Law §73(8) applies in the instant case to prohibit the former State officer from representing [the public employees' organization] because the contract negotiations are a transaction which was under the active consideration of the former officer and in which he participated by voting while employed with the [public authority].
Pursuant to Public Authorities Law §1299-c, the [public authority's] board consists of a chair and ten other members appointed by the Governor with the advice and consent of the Senate. While the former officer served as the chair [he was] responsible for the discharge of the executive and administrative functions and powers of the authority.(2) He also held the position of acting executive director [ ].
Article IV of the [public authority] by-laws which were in effect during the former officer's tenure as chair and acting executive director describe the duties of the positions as follows:
The Chairman shall be the chief executive officer of the Authority  and shall be responsible for the discharge of the executive and administrative functions and powers of the authority, but he shall be empowered to delegate any one or more of such functions or powers, including, without limitation, that of appointment, discipline and removal of officers or employees, to one or more executive officers appointed by the Board.
He shall preside at all meetings of the Authority, sign all official orders thereof and shall, where required by statute, sign all vouchers and requisitions for payment upon recommendation of the Comptroller or other fiscal officers.
The Executive Director shall, under the supervision of the Chairman and subject to the order of the Authority, administer the program of the Authority and shall perform such other duties as the Chairman or the Board may from time to time impose or require of him.
In addition, the by-laws also provide:
All contracts and obligations of the Authority  shall be signed by the Chairman or Vice-Chairman or by such other person or persons as the Board may from time to time designate.
According to [the public authority] as chair and chief executive officer of the agency, the former officer presided at  board meetings. Pursuant to standard board procedures, the chair would present and recommend particular actions on labor contracts. Discussion of labor contracts and response to the board's questions would be led by the executive director. The chair, as a member of the board, would vote on all matters brought before the board. The board, by resolution, would direct the chair or the executive director to sign labor contracts. According to counsel at [the public authority] both officers were authorized to sign labor contracts.
According to the [public authority], the chair voted on the 1981, 1984 and 1988 labor contracts with [the public employees' organization] which were signed by the then executive directors on behalf of [the public authority]. The former officer was neither the acting executive director at any of these times nor did he sign the [public employee's organization] contract as chair. The former officer signed labor contracts with other public employees' organizations representing [authority] employees in both his capacities as chair and as acting executive director.(3)
The former [public authority] officer has been contacted to serve as a consultant to [the public employees' organization] during its current contract negotiations with [the public authority]. The parties are at impasse and are presently in the fact-finding phase for a labor contract . A hearing before an independent fact-finder is scheduled to take place [ ], at which time the [public authority] and [the public employees' organization] will present their positions.(4) The fact-finder will make non-binding recommendations that are presented to the [public authority's] board. The [public authority] board may adopt, modify or reject the fact-finder's recommendations in whole or in part. Should the [public authority's] board reject the fact-finder's recommendations, the board has the authority to impose a one-year settlement. The former officer has not been retained, formally or informally, in any way by [the public employees' organization] pending the Commission's determination on whether the proposed activity is prohibited by the lifetime bar provision of Public Officers Law §73(8).
The lifetime bar provision of Public Officers Law §73(8) provides the following:(5)
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 which he personally participated during the period of his service or employment, or which was under his or her active consideration.
The lifetime bar is a limitation imposed to restrict former officers or employees from using specific insider knowledge about a transaction on which he or she worked forever. To trigger this limitation, the individual, while employed by the [public authority], must have been directly concerned and personally participated in, or actively considered the same transaction in which he wishes to appear, practice, communicate or otherwise render services following termination from State service. The statutory language is clear that mere acquaintance with or knowledge of a fact or circumstance is insufficient to trigger the lifetime bar. More is needed; the facts must clearly show personal participation and direct concern or active consideration of a transaction.(6)
In Advisory Opinion No. 91-12, the Commission considered whether the lifetime bar applies to prohibit a former State employee from bidding or participating in a particular improvement project. The former employee argued that while he had been substantially involved with the improvement project while an Authority employee, the project had changed significantly and other design consultants had been paid millions of dollars to redesign the project. The Commission found the improvement project to be the same "transaction" and covered by the lifetime bar because the subject property and the basic concept of reconstruction had not changed to render this project a different transaction. The Commission stated:
The fact that the exact design of that project has changed does not change the essential nature of the transaction as a reconstruction of the passenger terminal at . . . The State agencies, the subject property and the basic concept of reconstruction have not changed to a degree necessary to render this project a different transaction in order to avoid application of the lifetime bar.
The fact that the design has been modified since the former employee's departure does not change this transaction into a new one; it is like an amendment to an existing contract which does not change the nature of the transaction but merely modifies its terms.
The Commission believes that the former employee has more than just passing knowledge concerning the . . . reconstruction project. He served as the Chief Capital Construction Officer with specific responsibility for the reconstruction project. The level of responsibility of the former employee indicates his active involvement in the nature of personal participation, direct concern and active consideration regarding the construction.
The Commission concludes that the lifetime bar applies to the circumstances of the instant case. It is not questioned that the former officer as chair and/or acting executive director had significant responsibility over all executive and administrative functions of [the public authority] including the agency's contracts with its employees and that, as a member of the board [ ], he voted on the labor contracts with [the public employees' organization]. The parties to the current negotiations are the same. While certain provisions of the contract that may ultimately be entered into following the current impasse may be different from earlier contract provisions, the basic transaction is not only a labor contract between [the public authority] and [the public employees' organization], but a contract that will supplant the contract signed by [the public authority] while the officer was chair. Therefore, under the lifetime bar, the former officer would be precluded from appearing, practicing, communicating, or rendering any services for compensation for [the public employees' organization] in relation to the current contract negotiations with the [public authority].
This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding concerning the requesting individual who acted in good faith, unless material facts were omitted or misstated by the person in the request for opinion.
Joseph M. Bress, Chair
Angelo A. Costanza
Donald A. Odell, Members
1. Both the [public authority], through a December 10, 1991, letter from its general counsel, and the former [ ] chair, through a December 13, 1991, letter from his attorney, have requested the Commission's opinion on this matter.
2. See L.[ ], which made the chair a per diem position effective [ ]. Prior to that time, the position was considered part-time even though compensated. The Commission's determination that the former chair is subject to Public Officers Law §73(8) is based on the fact that at the time he was chair the position was compensated ($30,000/year). Per diem and uncompensated members of the board of [the public authority] currently are not subject to Public Officers Law §73(8).
3. There is nothing to indicate that as chair or as acting executive director, the requesting individual was personally involved in the contract negotiations with [the union]. Those responsibilities are normally delegated to staff of [the public authority].
4. The fact-finder was selected by the [public authority] and [the public employees' organization] from a panel of available fact-finders compiled by the Public Employment Relations Board ("PERB").
5. As over two years have elapsed since the officer left [the public authority], the Commission needs to only consider the lifetime provision of §73(8).
6. See Advisory Opinion No. 91-2.
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