New York State
Ethics Commission

Advisory Opinion No. 93-8: Application of the post-employment restrictions of Public Officers Law §73(8) to a [former State employee].

Introduction

The following advisory opinion is issued in response to a [ ] request by [a former State employee] whether he may receive a "hardship exemption" from the post-employment restrictions contained in Public Officers Law §73(8). On January 25, 1993, the Commission issued an informal opinion which stated that Public Officers Law §73(8) does not contain any provision by which an individual can apply for a "hardship exemption" and, therefore, the former State employee's request was denied. On January 30, 1993, the requesting individual asked for a formal opinion of the Commission.

Pursuant to its authority under Executive Law §94(15), the State Ethics Commission ("Commission") hereby renders its opinion that Public Officers Law §73(8) does not provide for former State officers and employees to request "hardship exemptions" from the law's post-employment restrictions.

Background

The requesting individual was employed by [a State agency] in charge of many large construction projects and retired from that position in October 1991. According to his letter, although his State pension is adequate for his sustenance, he is now faced with financial strains as a result of his wife's illness and her confinement to a nursing home. He states that the cost of her care has just about used up all of his assets and his next move is to apply to the Department of Social Services for help.

The requesting individual has applied for an [ ] position with many [ ] firms that perform [ ] work for [the former employing agency]. While these firms also do private work, the requesting individual states that the only positions available [involve the former State agency's] projects. These [ ] firms cannot hire the requesting individual because of the post-employment restrictions contained in Public Officers Law §73(8). The requesting individual states that if granted an exemption from the post-employment restrictions, he is certain that he could find work for the oncoming construction season, and that such employment and his pension would cover the nursing home costs and allow him to live fairly comfortably.

Applicable Statute

Public Officers Law §73(8) 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 . . .

Discussion and Conclusion

Public Officers Law §73(8), generally referred to as the "revolving door" provision, 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, subdivision 8 of §73, as amended, 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. There is a permanent prohibition against appearances pertaining to matters in which the employee was directly concerned and personally participated.

Public Officers Law §73(8) does not contain any provision by which an individual can apply for a "hardship exemption."(1) It is beyond the Commission's statutory authority to grant such requests. Therefore, the Commission has no choice but to deny the request.

Applying the law to the requesting individual's circumstances, he may obtain employment for an [ ] firm that does [work for the former employing agency] provided he has no involvement whatsoever with and receives no net revenue from the [former State agency's] projects. In other words, he may work for the [ ] firm provided that he is assigned to private or other projects that in no way involve the [former State agency].

We are aware of the impact of this law as it relates to the requesting individual's personal circumstances. However, every person affected by the revolving door limitations may be able to assert similar claims. Without a recognition in law to grant waivers, the Commission is constrained from considering such personal justifications. We are aware that the requesting individual's two year bar ends next October. He can then freely accept such positions as he describes, as long as he complies with the lifetime bar contained in §73(8).

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.

All concur:

Joseph M. Bress, Chair

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

Dated: March 8, 1993

Endnotes

1. This is contrasted with Executive Law §94(9)(h) and (i) which permits any person who is required to file a financial disclosure statement to request that the Commission delete one or more items of information from public inspection or to request an exemption from reporting certain information on the form; and Executive Law §94(9)(k), which permits any person who has not been determined by his or her appointing authority to hold a policy-making position but who is otherwise required to file a financial disclosure statement to request an exemption from such filing requirements.

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URL: http://www.nysl.nysed.gov/edocs/ethics/93-08.htm