New York State
Ethics Commission


Advisory Opinion No. 93-2: Application of the lifetime bar proscription of Public Officers Law §73(8) to a former assistant counsel to the Governor who wishes to lobby certain legislation before the State Legislature.

Introduction

The following advisory opinion is issued in response to an inquiry from a former assistant counsel to the Governor, [the requesting individual] concerning whether the post-employment proscriptions contained in the Public Officers Law prohibit him from actively lobbying the New York State Legislature ("Legislature") and State agencies on issues with which he was associated while employed by the State of New York and whether such provisions prohibit his involvement in the rule-making and rate-setting aspects of these same issues.

Pursuant to the authority vested in it by the Executive Law §94(15), the State Ethics Commission ("Commission") hereby renders its opinion that the lifetime bar precludes [the requesting individual] from appearing, practicing, communicating or rendering any services before the State Legislature and State agencies or receiving any compensation for any services in relation to the legislation described in his request because it is a transaction with respect to which he was directly concerned and in which he personally participated during the period of his State employment or which was under his active consideration. [The requesting individual] is also barred from activities relating to the rule-making and rate-setting methodology to be developed for the implementation of the legislation in question.

Background

This opinion is provided pursuant to [the requesting individual's] request for a formal opinion.

[The requesting individual] began working in the Executive Chamber as an assistant counsel to the Governor [in] 1986.(1) The Governor's counsel has the duty to "advise the Governor in regard to the constitutionality, consistency and legal effect of bills presented to the Governor for his approval and on matters involving the exercise of executive clemency and such other legal matters as may be referred to him by the Governor."(2) Assistant counsels, who report to the counsel, have specific areas of responsibility. [The requesting individual] advises that, during the course of his service in the Executive Chamber, he was responsible for issues in [certain areas]. His duties required that he discuss proposed legislation with State agencies, members and staff of the State Legislature, and non-government individuals and interest groups concerned with those issues. He often served as liaison between affected agencies and representatives and staff of the Legislature, forging compromises and agreements between the various interests whenever possible. [The requesting individual] left the Executive Chamber and State service [in] September, 1990. He began work with [a private law firm] in October 1990.

[Governor's proposal]

In 1986, the federal government established a new categorical grant to assist and encourage states to develop comprehensive programs and services for [a targeted group with special needs].(3) The law also set forth certain program requirements for funding eligibility and required each state to designate a "lead agency" to plan and develop the [ ] program. The program in place in New York State at the time of the federal enactment failed to meet the federal funding requirements. Certain groups interested in the delivery of services to the [targeted group] also held that the existing program failed to provide adequate or appropriate services to this client group. In 1986, the Governor designated the Department of Health ("DOH") as the lead agency to develop a program in compliance with the federal law.

[The requesting individual] stated that:

[d]uring the 1989 legislative session, DOH submitted to the Legislature a 'departmental' proposal to conform the State's program to the federal standards and authorizing the Commissioner of Health to establish a program to serve [the targeted group. . . .](4)

As a result of his work on a related issue [. . . the requesting individual] became involved in discussions concerning [the special] programs for [the targeted group] in the autumn of 1989. [The requesting individual] participated on a committee that consisted of the Governor's program associate responsible for health issues, and representatives of DOH, the Division of the Budget ("DOB") and other affected State agencies. According to [the requesting individual], this committee was charged with redrafting the DOH legislative proposal. [The requesting individual] described his participation with the committee in his [ ] letter to the Commission as follows:

. . . On some issues, I expressed a view as to how the system should work. Some of my views were adopted and others were not. In addition, I rewrote portions of the bill. Other portions were written by DOH, DOB and other State agencies. As those who know the process understand, this was a consensus process that I helped direct but which, for the most part, did not reflect my 'program' choices.

The resulting bill [ ] was proposed as a Governor's program bill during the 1990 legislative session.(5) [The requesting individual] stated that, "because of the extremely late budget and because there was no urgency to enact legislation, the committee had only one meeting with legislative staff." He stated that no negotiations on the bill took place at that meeting. In June 1990, a different assistant counsel was assigned responsibilities for the bill. That assistant counsel met with the committee and visited [the special] programs. [The requesting individual] stated that he "generally did not attend the meetings."

[Alternative to the Governor's proposal]

On May 21, 1991, [the requesting individual] requested an informal opinion from the Commission concerning whether he would be permitted to appear before the Legislature and lobby on [issues related to the bill described above], a subject with which he was associated while employed by the Executive Chamber.(6) Commission staff issued a non-binding informal advisory opinion on July 1, 1991, which indicated that appearances before the Legislature were not "before" any State agency and were thus not subject to the Public Officers Law post-employment restrictions. The letter also stated that [the requesting individual's] involvement in the matters he described was not barred by the lifetime prohibition because he was not "advocating the same legislative proposals" on which he worked while with the Executive Chamber.

[The requesting individual] states that, acting on the Commission's informal advisory opinion, he began lobbying activities on behalf of a coalition of [interest parties] interested in an alternative to the Governor's [proposal]. [The requesting individual] characterized the alternative bill, [ ] as:

. . . an attempt to build on the [Governor's] proposal but make changes in several key areas. Contrary to what some have assumed, the bill was not intended to undermine or advance the [Governor's proposal . . .]. Rather, it was an attempt to focus attention in a pro-active way on certain issues by offering an alternative.(7)

The [alternative] bill contained many of the same provisions of the [Governor's proposal] bill but placed a greater emphasis on [ ] involvement and participation by service providers in the [special] program.

[The requesting individual] stated that "although negotiations between the Legislature and the Governor initially did not progress, in June [1992] the pace of negotiations accelerated." [Text omitted.](8)

On July 7, 1992, the Legislature delivered to the Governor a [compromise bill].(9) In his July 31, 1992 letter to the Commission requesting a formal opinion, [the requesting individual] described [the bill] as a compromise between the Governor's [proposal], the bill he worked on while in the Governor's office, and [the alternative] on which he worked on behalf of his private clients. [The requesting individual] said he sought an opinion because he "welcomed the Commission's scrutiny on any aspect of this matter." He also requested permission to work on "(1) new matters that will arise as the legislation is implemented and (2) other statutory changes that still must be enacted."

[The requesting individual] contends that the primary issue which formed the basis of the legislation was how to structure a system for serving [the targeted group]. He states that the system had to meet "broad parameters" set by the federal government but notes that there were different options as to how the system should be structured. He indicated that:

as times changed and as my views and the views of my clients crystallized, we came to the conclusion that we could best address the issues by developing legislation that sought the same result -- an entitlement for [the targeted group] -- but did so by adding certain protection that did not exist in either of the Executive Branch proposals (one of which I had no role in).(10)

[The requesting individual] stated that, following enactment of the [compromise] legislation, a lengthy process of developing and promulgating regulations and rate-setting methodology will ensue. He noted that, since the regulations and methodology have not been drafted, his work on these aspects of the [compromise] program will not constitute transactions with which he was directly concerned and personally participated while a State employee.

The questions before the Commission are whether [the requesting individual's] lobbying efforts on the [alternative] proposal as well as prospective work on regulations and rate-setting methodology to implement the [compromise] legislation are prohibited by the lifetime bar of Public Officers Law §73(8).

Applicable Law

The post-employment activities of former State officers and employees are governed by Public Officers Law §73(8), which bars certain acts to prevent former employees from utilizing their "insider" knowledge of State agencies and specific projects for their own benefit or that of a client. The subdivision sets the ground rules for what individuals may do with the knowledge, experience and contacts gained from public service after they terminate their State employment. In the present case, the Commission must decide whether the post-employment activities of a former assistant counsel to the Governor constitute appearances prohibited by §73(8), which states the following:
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 service 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 agencyor 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 active consideration.

Also known as the "revolving door" provision, §73(8) bars former State officers and employees for two years after termination of employment 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. The lifetime bar's provisions permanently prohibit former State officers and employees from receiving compensation for services in relation to cases, proceedings, applications or transactions in which they were directly concerned and in which they personally participated or which were under their active consideration.(11)

Discussion

Purpose and intent of the post-employment restrictions

The revolving door provision was part of the sweeping reforms made by the 1987 Ethics in Government Act ("Act"). This Act was intended "to enhance the public trust and confidence in our governmental institutions . . . [with] strengthened prohibitions against behavior which may permit or appear to permit undue influence or conflicts of interest. . . ."(12) Public Officers Law §73(8) can be said to reflect the same intent expressed by Congress when, in 1978, it enacted federal restrictions on post-employment activities; specifically:

[f]ormer officers and employees should not be permitted to exercise undue influence over former colleagues, still in office, in matters pending before the agencies [and that] they should not be permitted to utilize information on specific cases gained during government service for their own benefit and that of private clients. Both are forms of unfair advantage.(13)

Professional codes of conduct articulate the same concerns. For example, in discussing the disciplinary rule precluding a lawyer from accepting employment on a matter for which he had substantial responsibility while a public employee, the American Bar Association's Committee on Ethics and Professional Responsibility stated "the intent clearly was for DR 9-101(B) [Disciplinary Rule] to be applicable to the lawyer whose former public or governmental employment was in any capacity and without regard to whether it involved work normally handled by lawyers."(14) The Commission does not interpret or apply the standards required of lawyers to former State employees who are attorneys. However, individuals such as [the requesting party] should be aware of their responsibilities under such codes in addition to the Public Officers Law.(15)

Appearances before the Legislature

In an opinion issued after the instant request, the Commission held that Public Officers Law §73(8) applies to preclude services rendered before the Legislature on lifetime-barred transactions. In Advisory Opinion No. 92-20, the Commission stated:

[Public Officers Law] §73(8) is most naturally read to apply to the compensated rendering of services in relation to matters before the Legislature, as well as in relation to matters before a State agency. . . . The agenda of State government is an integrated whole; the Legislature enacts laws, many of which are implemented and enforced by State agencies. Why would lawmakers protect the later but not the earlier part of the process; the implementation but not the adoption of policy? We think that they would not choose so to limit the effect of such a law as we are now considering, and that they did not do so in this case.(16)

The Commission leaves until a future time a discussion of the application of the lifetime bar elsewhere. The decision reached in this opinion shall apply prospectively only.(17)

Case, proceeding, application or transaction

The Commission must next determine whether [the alternative] legislation on which [the requesting individual] worked for his private clients is the same transaction as the [Governor's proposal] with which he was directly concerned and in which he personally participated or which was under his active consideration while in State service.

The Commission has previously held that bills introduced in the same or even in different legislative session may constitute the same transaction when they affect the same or substantially the same population and issues.(18) This position is consistent with our holding in an earlier decision involving a former employee who sought to bid on a construction project on which he worked while in State service, the scope and nature of which had been altered after he left the State. In that case we stated:

The fact that the exact design of that project has changed does not change the essential nature of the transaction. . . . It is like an amendment to an existing contract which does not change the nature of the transaction but merely modifies its terms. . . .(19)

In the instant case, [the requesting individual] personally participated in drafting legislation and in meetings with affected State agencies to coordinate the development of a Governor's program bill aimed at compliance with [the federal law] and the establishment of a new method for administering [special] programs and services to [the targeted group]. Although certain technical amendments were made to the program bill between 1990 and 1992, the essence of the bill (i.e., subject and purpose, parties interested and affected, and the ultimate goal of the legislation) remained constant. The [alternative proposal] bill for which [the requesting individual] subsequently lobbied on behalf of a coalition of [interested parties] was similarly developed to respond to [the federal law]. While this bill sought a different method for providing and coordinating services and service delivery to [the targeted group], the subject of the bill, the parties interested and affected by its implementation and the ultimate goal of the legislation were the same for the 1990 program bill on which [the requesting individual] worked for the State.

Therefore, the Commission cannot but conclude that [the requesting individual's] performance of services as a lobbyist on the [alternative proposal] constitutes work on the same transaction with which he was directly concerned and in which he personally participated or which was under his active consideration while in State service. His attention has been focused on legislation which has evolved out of a very similar bill with which he was directly concerned and in which he personally participated while in State service. His activities involve the same basic facts, parties and confidential information with which he was involved when he was employed by the State. The activities, both on behalf of the Governor and subsequently on behalf of his law firm's clients, were directed at designing a State program to comply with the same federal law.

Guided by the facts discussed above, the Commission concludes that [the requesting individual] may not receive compensation for services rendered in relation to [alternative proposal] before the Legislature or any State agency. Work on this same transaction is prohibited not only by the letter, but by the spirit, of Public Officers Law §73(8).

Regulations and rate-setting

[The requesting individual] also seeks approval from the Commission regarding other [ ] work related to the "implementation of the statute that was passed" and the "establishment of a rate-setting methodology, which the legislation required be enacted pursuant to a chapter."(20) He indicates that as a result of the [compromise] legislation "there will now be an extended process of developing and promulgating regulations" and that a "rate-setting methodology [will] have to be established. . . ."(21) [The requesting individual] argues that neither issue represents a matter with which he was directly concerned or in which he personally participated while a State employee.

The Commission must determine whether participating in this rule-making and rate-setting is sufficiently different from working on the legislation so as to constitute a different transaction which would not involve the lifetime bar. [The requesting individual] has argued that at the time he was involved in developing the 1990 Governor's program bill, any consideration of the specific content of the rules that would be developed therefrom would have been extremely premature; no one could predict the revisions the proposal would undergo before enactment if indeed enactment even occurred. [The requesting individual] argued further that even if he could have predicted the final form of the bill, as an assistant counsel to the Governor, he would not likely have been involved in the details of the [compromise] program. [The requesting individual] states that he did not "participate in discussions concerning the more detailed program matters that will now be the subject of the regulations, such as eligibility criteria, program approval standards, standards for evaluators, etc. Indeed, this is the very type of issue in which an assistant counsel would not become involved, because we generally left the nuts and bolts of programs to the State agencies."(22)

The Commission is not persuaded by these arguments. Legislation serves as the framework for drafting regulations. Regulations are the devices by which legislative directives and intent are executed. Regulations must follow the programmatic outline articulated by the Legislature in statute. By necessity, regulations implementing legislation affect the very parties addressed by the legislation. Regulations are inextricably connected to the enabling legislation they seek to effectuate. The knowledge, experience and expertise gained in drafting a statute become invaluable tools when seeking to shape the regulations needed to accomplish the mission of that statute. This knowledge may also be used to influence and effectuate significant policy determinations that were not otherwise articulated or successfully incorporated into the original statute. Certainly, the use of "insider" knowledge in either manner constitutes the very evil that Public Officers Law §73(8) is designed to address.

The Commission concludes that to work for compensation in relation to the regulations and rate-setting methodology required to implementthe [compromise] legislation, if such matters are before the Legislature or any State agency, would be to render services for compensation in violationof the lifetime bar of Public Officers Law §73(8). Conclusion The lifetime bar of Public Officers Law §73(8) prohibits a former officer or employee of the State of New York from appearing, practicing, communicating or rendering services before any State agency and the State Legislature or receiving compensation for services rendered in relation to transactions with which the former employee was directly concerned and personally participated or were under his or her active consideration while in State service. Consequently, the Commission concludes that [the requesting individual], a former assistant counsel to the Governor, is prohibited from appearing, practicing or communicating or otherwise rendering services before any State agency and the State Legislature, or receiving compensation for services rendered with respect to the [compromise] legislation and the rule-making and rate-setting activities associated with the [special] program. Such prohibition applies to appearances, practices, communications and any other services before the Legislature or any State agency.

This opinion shall apply prospectively only.

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 or related supporting documentation.

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. The Executive Chamber was created by Article 2 of the Executive Law as the Office of the Governor.

2. Executive Law §4.

3. [Footnote deleted.]

4. [ ] letter from [the requesting individual] to the Commission.

5. [Footnote deleted.]

6. On November 11, 1990, [the requesting individual] submitted a request for an informal opinion requesting guidance on representing a client seeking reform [of a particular law as it relates to another area over which the requesting individual had responsibility while in the Governor's office. . . .] In response to an inquiry whether he might represent a client seeking comprehensive reform of the [ ] law, the Commission issued an informal opinion on February 19, 1991 stating:

There is no post-employment restriction on services rendered by you with respect to the Legislature. . . .

7. July 31, 1992, letter from [the requesting individual] to the Commission.

8. [Footnote deleted.]

9. The Governor signed the bill into law.

10. [The requesting individual] letter to the Commission dated July 31, 1992.

11. The facts presented do not seem to involve the two-year bar provision. The Commission, therefore, restricts its opinion to the lifetime bar issue.

12. See p. 5, Governor's program bill memorandum to the Ethics in Government Act.

13. 1978, U.S. Code and Administrative News, p. 4247, as cited in Advisory Opinion 88-1. The federal post-employment restrictions are codified in 18 U.S.C. §207.

14. Op. 342 at p. 119.

15. The Commission is responsible for interpreting and enforcing only the provisions of Public Officers Law §§73, 73-a and 74.

16. See Advisory Opinion No. 92-20, p. 16.

17. "With the enactment of the State Administrative Procedure Act in 1975 the Legislature expressly recognized the authority of administrative agencies of State government to change rulings prospectively: '[N]othing in this section shall prevent an agency from prospectively changing any declaratory ruling.'(§204)" National Elevator Industry, Inc. v Tax Comm (49 NY2d 538, p. 548). A State agency's power to issue declaratory rulings under the State Administrative Procedure Act is comparable to the Commission's authority to issue binding advisory opinions under Executive Law §94(15).

18. See Advisory Opinion No. 92-20, p. 20.

19. See Advisory Opinion No. 91-12, pp. 7-8.

20. [The requesting individual] letter to the Commission dated July 31, 1992.

21. Indeed, the law provides that DOH must consult with an advisory council concerning its policies and procedures. It also establishes a task force to consult with the Commissioner of Health in the development of a program payment methodology. Both the advisory council and the task force consist of representatives from various groups interested in the [compromise]. These groups include [interest parties].

22. July 31, 1992 letter from [the requesting individual] to the Commission.



URL: http://www.nysl.nysed.gov/edocs/ethics/93-02.htm