New York State
Ethics Commission


Advisory Opinion No. 92-22: Application of the post-employment restrictions of Public Officers Law §73(8) to a former State employee engaged in the private practice of law in a pending lawsuit with the State.

Introduction

The following advisory opinion is issued in response to an inquiry by a former employee of [a State agency] concerning whether he is prohibited by the post-employment provisions of Public Officers Law §73(8) from (1) meeting with officials [of his former agency] and the State Attorney General representing [the agency] to discuss a pending lawsuit against his client and (2) meeting with officials [of his former agency] subsequent to the initiation of litigation against his client.

Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by Executive Law §94, the Commission hereby renders its opinion that the former employee is prohibited by Public Officers Law §73(8) from appearing for any reason before his former agency within two years of his termination, and that, under the facts presented, appearances before the Attorney General staff who represents the former agency in pending litigation are no different from appearances before the former agency. The Commission has already found, in Advisory Opinion No. 89-07, that appearances before a court subsequent to the initiation of litigation are not deemed appearances before one's former agency for purposes of the two-year bar.

Background

The requesting individual is a former counsel to the [State agency] Regional Office in [ ] who resigned from State service in late November, 1991. He is presently of counsel to [a private law firm]. He advised in his May 5, 1992, correspondence to the Commission that he represents the [client] which owns certain property in [ ].(1) Attached to the former employee's letter was a copy of correspondence to his client in which an associate attorney [with the former State agency] claimed that a parcel of land cleared and filled by the client was actually a portion of land contained within Township [ ] acquired by the State [ ]. The [State agency] attorney stated that the land in question is [ ] owned by [the State agency]. [The State agency's] attorney wrote:

[t]he purpose of this letter is to notify you of the State's claim of title, and of our pending referral of this matter to the Attorney General for appropriate legal proceedings. The relief we will seek either by agreement or court order will include removal of the fill, restoration of the site, and appropriate penalties.

The former employee stated that it is his understanding that once a "matter is in the hands of the Attorney General and being pursued in Supreme Court," he is permitted to become involved. He claims that [his former employing State agency] lacks jurisdiction to determine title to real property and that [the former employing State agency] intends to refer the matter to the Attorney General. He requests a Commission determination on whether he is prohibited by the post-employment provisions of Public Officers Law §73(8) from (1) meeting with officials [of his former employing State agency] and the State Attorney General representing [the agency] to discuss a pending lawsuit against his client and (2) meeting with officials [of his former employing State agency] subsequent to the initiation of litigation against his client.

Applicable Statutes

Section 73(8) of the Public Officers Law states 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.

This subdivision 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, this subdivision 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.(2)

Discussion

Contact Prior to Litigation

The Attorney General, who had jurisdiction to interpret Public Officers Law §73 prior to implementation of the 1987 Ethics in Government Act, stated that the purpose of the revolving door provision contained in former Public Officers Law §73(7) was to "address the ethics problems that arise when a State employee leaves State service to work in the private sector." (Op. Atty. Gen. No. 84-F20; Op. Atty. Gen. No. 84-F12).(3) As the Attorney General stated in Opinion 86-F6 concerning two former State employees appearing before their former State agency,

[o]ne of the purposes of §73(7) is to remove any doubt in the public's perception as to whether actions by an employee or officer prior to separation from the State were solely in the public interest (1984 Op Atty Gen 46). The Legislature decided to eliminate the potential for impropriety or the appearance of impropriety by prohibiting State officers and employees, for a period of two years after the termination of State service, from appearing as to certain matters before the State agencies that employed them (ibid.). In our view, the public reasonably might question whether the subject persons carried out their public responsibilities solely in the public interest or whether they consciously or otherwise acted to further their private business objectives. It is this potential for abuse and appearance of impropriety that forms the underpinnings for the two-year rule expressed in §73(7) of the Public Officers Law.

The Commission has followed the reasoning of the Attorney General on this point and has rendered numerous similar opinions. (See Advisory Opinions Nos. 89-8, 90-4, 91-2, 91-5, 91-9.) The requesting individual argues that because this is a real property title dispute over which [his former employing State agency] does not have ultimate jurisdiction, his appearance before [the agency] is not prohibited by the post-employment proscriptions of the Public Officers Law. The Commission does not agree. [The former employing State agency] has a role in protecting the State lands which it manages. According to staff at the Attorney General's office, if the matter is a boundary dispute which goes to litigation, [the State agency] has jurisdiction to resolve it and the Attorney General and the Comptroller must approve the settlement. If the matter involves a title claim dispute which goes to litigation, [the State agency] must work with the Attorney General on the case.

Referral to the Department of Law

The Department of Law is authorized by Executive Law §63 to "prosecute and defend all actions and proceedings in which the State is interested and have charge and control of all the legal business of the departments and bureaus of the state, or of any office thereof which requires the services of an attorney or counsel, in order to protect the interest of the state. . . ."

Executive Law §63(8) states that "whenever in his judgment the public interest requires it, the attorney general may, with the approval of the governor, and when directed by the governor, shall, inquire into matters concerning the public peace, public safety and public justice."

The "Attorney General is the legal adviser of all departments of State and has charge and control of all legal positions in which any department requires the services of an attorney or counsel." 1908, Op. Atty. Gen. 320, See also, Op. Atty Gen. 429. In Abrams v. Kearney, 133 Misc.2d 845, 508 N.Y.S.2d 850 (1986), the court said that "[T]he Attorney General and his staff may conduct the investigation on behalf of the Comptroller [of the State of New York], since he is, in effect, the State's attorney." In Bock v. Cooperman, 89 A.D.2d 539, 452 N.Y.S.2d 629 (1982), the court also referred to the Attorney General as acting in his statutory role as counsel to the Workers' Compensation Board.

According to the Attorney General's staff, the Department of Law and the State agencies it represents maintain a symbiotic relationship. Assistant Attorneys General defer to the knowledge and expertise of agency staff when preparing to prosecute or defend a case. The Commission has not discovered any statute or rule which states that it is the Attorney General or the State agencies who have absolute control over the conduct of litigation. Much depends on the nature of the case. As attorney for the agency, the Attorney General becomes an extension of the agency for that case and is not an independent entity or operator distinct from the agency.

The requesting individual advises that the title claim is to be referred to the Department of Law for resolution in court.(4) The Department of Law and [the former employing State agency] often work jointly to prosecute parties who violate provisions of the [law] and [the State agency's] rules and regulations. If the Department of Law severally brings a claim, it often may initiate meetings and negotiations that would include both [State agency] and potentially disqualified former [State agency] employees. [ ] it is unlikely for an [ ] dispute involving the Department of Law not to include [former employing State agency]. In matters pertaining to the [ ], the Attorney General will likely require [State agency] expertise and guidance from a very early stage.

This decision expands on prior Commission rulings. The Commission has held that, where a former employee appears or practices before a State agency which, pursuant to statute, regulation or policy, must utilize the expertise of that person's former agency to reach its decisions, the former employee is barred from any of the proscribed activities in relation to any portion of the matter which would necessarily be reviewed by the person's former agency.(5) Prior to the commencement of legal proceedings, any appearance, practice or receipt of compensation for services rendered by a former employee of [the State agency] before [former employing State agency] personnel, either in their role of assisting the Department of Law in its investigation or discussions or when conducting their own, must be considered as "before" [the former employing State agency] and will trigger the proscriptions of §73(8).

Appearances before the judiciary

Where the Department of Law represents [the former employing State agency] in the context of actual litigation in State or federal court on behalf of a client, such representation of the client is considered to be "before" the judiciary and therefore beyond the scope of the Public Officers Law for purposes of the two year bar only. That is because the matter on which the disqualified employee would be working is one which is before the courts, not before [the former employing State agency]. In Advisory Opinion No. 89-7, the Commission addressed the extent to which a former State employee, within two years of termination of employment, may participate in the settlement of an action which had been commenced either by or on behalf of the former agency in a State or federal court when settlement negotiations involve direct contact with the former agency. The Commission stated:

[t]he representation of the client, as long as the matter is in a court proceeding and does not involve a case, proceeding, application, or other matter or transaction which is before the former employing agency, would not violate the "revolving door" provision. The case or controversy must be before a court of competent jurisdiction. In most cases, such court must review or approve such a settlement prior it its ultimate acceptance. Under §73(1)(g) of the Public Officers Law, a State (or federal) court is not one of the entities defined as a State agency; it is thus not covered by §73.

However, in that opinion the Commission noted the distinction between the lifetime bar and the two year bar, and described the lifetime bar as prohibiting a former employee:

from receiving compensation from a client in any federal or State court proceeding where that former officer or employee was either directly concerned with and personally participated in the case, application, proceeding or transaction or had such case, etc., under his or her active consideration during State employment or service. (emphasis added; Advisory Opinion No. 89-7, pp. 11-12.)

The present case is no different. The former [State agency] employee may deal with [the State agency] or receive compensation for services rendered pertaining to litigation involving his former agency only subsequent to the initiation of proceedings in court where he represents a party to the litigation. The former employee is prohibited from receiving compensation in any federal or State court proceeding where he was either directly concerned and personally participated in the case, application, proceeding or transaction underlying the litigation or had such case, etc., under his active consideration during State employment or service.

Conclusion

The requesting individual, like some other former [State agency] employees, is well known as an expert in the [ ] field. While in State service, he was actively involved in numerous [ ] projects and was, to some degree, influential in instituting [ ] prosecutive methods and procedures currently in use by [the State agency] and the Department of Law.

The Commission concludes, therefore, that the two-year bar of §73(8) precludes the former employee from appearing before both his former agency and the Attorney General, which represents the former agency prior to the institution of legal proceedings. However, if the matter is subject of a court proceeding where he represents a party after commencement of the action, the two year bar of §73(8) does not apply to preclude appearances by the former employee at meetings with the Department of Law or [the former employing State 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 acted in good faith unless material facts were omitted or misstated in the request for opinion.

All concur:

Joseph M. Bress, Chair

Barbara A. Black
Angelo A. Costanza
Robert E. Eggenschiller
Donald A. Odell, Members


Dated: December 15, 1992


Endnotes

1. [ ] was not within the former [State agency ] counsel's region while he was in State service.

2. The second half of §73(8), also known as the "lifetime bar," permanently prohibits former State officers and employees from appearing, practicing, communicating, or otherwise rendering services in relation to cases, proceedings, applications or transactions in which the employee was directly concerned and personally participated or which were under his or her active consideration. The Commission does not address the lifetime bar in this opinion because the requesting individual indicates that while in State service he had no involvement with the property in question.

3. The "revolving door" subdivision previously was contained in Public Officers Law §73(7). When the law was amended, it was renumbered §73(8).

4. [Footnote deleted].

5. Ethics Advisory Opinion No. 89-8 - Former (Agency X) employee, employed by private consulting firm, retained to appear before (Agency Y) in matter to be reviewed by (Agency X). The Commission held that "(t)o the extent that (Agency Y) involves (Agency X) and relies on the (Agency X) input in decision making, the matter submitted to (Agency Y) technically is before (Agency X) to that extent so as to trigger the proscriptions of §73(8) of the Public Officers Law."


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