New York State
Ethics Commission


Advisory Opinion No. 93-18: Application of the post-employment restrictions of Public Officers Law §73(8) to a former commissioner of [a State agency].

Introduction

The following advisory opinion is issued in response to a joint request by a former Commissioner of [a State agency] and the Secretary to the [State agency], for an opinion whether the revolving door provision of Public Officers Law §73(8) applies to preclude [the former Commissioner] from participating as a party in a certain proceeding before the [State agency].

By letter dated August 9, 1993, the State Ethics Commission ("Commission") issued an informal advisory opinion and concluded that because the particular proceeding is one in which [the former Commissioner] personally participated while a [State agency] commissioner, the lifetime bar provision of Public Officers Law §73(8) would prohibit him from appearing, practicing or communicating with the [State agency] relative to the proceeding. In a second letter dated August 16, 1993, the Commission concluded that the two year bar of Public Officers Law §73(8) would prohibit [the former Commissioner] from participating as a party, whether or not for compensation, in any proceeding before the [State agency] for two years following his separation from State service.(1) The Commission concluded that [the former Commissioner] would not violate Public Officers Law §73(8) were [the State agency] to place his name on the distribution list for copies of all the pleadings, documents, briefs, etc., filed in the case, since the information is available to whomever asks; receipt of the mailings is not the equivalent of active participation in an ongoing proceeding and would not constitute a prohibited appearance, practice or communication.

By letter dated September 23, 1993, [the former Commissioner] asked for a formal opinion of the Commission.

Pursuant to its authority under Executive Law §94(15), the Commission hereby affirms the conclusions reached in the above-mentioned informal opinions.

Background

[ ] was a [State agency] commissioner until his separation from the State agency in [ ]. The Public Officers Law issue arose when [the former Commissioner] requested to be made a party to a proceeding [ ], in which he had, in an earlier phase, participated as a [ ] commissioner and had filed a dissenting opinion. As a result of his request, [the former Commissioner] and [the Secretary to the State agency] asked the Commission for a determination on whether Public Officers Law §73(8) applied.

[ ] involved a contract dispute between a [company] subject to the [State agency's] regulation and [another company]. In the phase of the proceeding in which [the former Commissioner] participated as a [ ] commissioner, the [State agency] directed (with [the former Commissioner] dissenting) the [regulated company] to enter into a contract with the [other company]. Now, more than two years later, the [regulated company] has filed a request to reopen the matter.

[The former Commissioner] has asked that he "be made a party to this proceeding and put on the distribution list for receiving copies of all the pleadings, documents, briefs, etc., filed in the case." [The former Commissioner] states that his request to participate in the proceeding is based on his interest in the matter "as a private person." [The former Commissioner] asserts that he is neither receiving any compensation nor has entered into any arrangement with individuals, businesses or [ ] regulated by the [State agency] for his participation in the proceeding.

According to [the Secretary to the State agency], [the State agency's] rules for allowing individuals to obtain party status are very liberal and, in most instances, anyone with an interest in a case is granted such status. Once provided party status, an individual is entitled to file his or her own pleadings or other papers, to receive copies of the filings of other parties, the [State agency] or its staff, and, where appropriate, to file responsive papers.

According to [the Secretary to the State agency], the [State agency], as a courtesy, routinely provides mailings covering the material [the former Commissioner] requested for a number of former commissioners and employees. [The Secretary to the State agency] notes that from the [State agency's] perspective, however, the receipt of these mailings is not the same as receiving party status. Individuals with party status have the opportunity to be heard during the course of proceedings before the [State agency].

Applicable Statute

Public Officers Law §73(8) provides:
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

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, 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 transactions in which the officer or employee was directly concerned and personally participated or which were under his or her active consideration.

[The former Commissioner], while not contesting his earlier participation in the [ ] proceeding while a [ ] commissioner, takes exception to that part of the informal opinion which equates his being provided party status with a prohibited appearance pursuant to Public Officers Law §73(8). [The former Commissioner] argues that the two year and lifetime bar provisions apply only to compensated appearances.

Both the two year and lifetime bar provisions of Public Officers Law §73(8) contain two clauses.

In the case of the two year bar provision, the two clauses prohibit a former officer or employee from:

  1. appearing or practicing before his or her former State agency, and/or

  2. receiving compensation for any services rendered on behalf of others in relation to certain matters before the former State agency.

In the case of the lifetime bar, the two clauses prohibit the former officer or employee from:

  1. appearing, communicating or otherwise rendering services before any State agency, and

  2. receiving compensation for any such services rendered in relation to certain issues.

Thus, the two year and lifetime bar preclude an appearance or practice before a State agency irrespective of whether compensation is received. This is fully consistent with the purpose of the Ethics in Government Act of 1987 as elaborated upon by the Court of Appeals when it stated:

The underlying premise [of the revolving door provision] is that "[f]ormer officers should not be permitted to exercise undue influence over former colleagues, still in office, in matters pending before the agencies [and] they should not be permitted to utilize information gained during government service for their own benefit and that of private clients. Both are forms of unfair advantage" . . . (PL 95-521, Senate Report, reprinted in 1978 US Code, Cong & Admin News 4216, 4247). Forti v. NYS Ethics Commission; Kuttner v. Cuomo, et al., 75 NY2d 596, 605 (1990).

Therefore, even without compensation, [the former Commissioner] would engage in a prohibited appearance by receiving party status and participating in the [ ] proceeding. As the [ ] proceeding is one in which he participated in an earlier stage and in which the parties and issues are the same, the lifetime bar provision of the Public Officers Law §73(8) would prohibit [the former Commissioner's] participation in [the proceeding].

In his letter requesting a formal opinion, [the former Commissioner] contends that the Commission's interpretation and application of Public Officers Law §73(8) would prohibit him from being a spectator at one of the [State agency's] public hearings. This is not the case, provided [the former Commissioner] truly attends as any member of the public and not to seek to intervene in the proceedings or otherwise appear before the [State agency] in this or any similar matter.

Conclusion

The Commission concludes that Public Officers Law §73(8) would prohibit [the former Commissioner] from receiving party status (and its attendant rights to actively intervene and the opportunity to be heard in the proceeding) for two years following his separation from the [State agency] and from ever receiving party status in any case in which he personally participated and was directly concerned as a [ ] commissioner. The Commission concludes that [the former Commissioner] may attend [State agency] public hearings or receive correspondence, if he does so as any member of the public would be so permitted.

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,
Donald A. Odell, Members

Dated: November 9, 1993


Endnotes

1. At the time of the Commission's first letter, the Commission had mistakenly believed that [the former Commissioner] had left the [State agency] more than two years ago. [The former Commissioner's] status was later specified in a subsequent letter from [the Secretary to the State agency].



URL: http://www.nysl.nysed.gov/edocs/ethics/93-18.htm