New York State
Ethics Commission

Advisory Opinion No. 94-19: Application of the revolving door provisions of Public Officers Law §73(8) to a subpoena issued to a former employee to appear at a hearing held before the employee's former State agency.

Introduction

The following advisory opinion is issued in response to a request submitted by [a private attorney] concerning whether a former employee of [a State agency] can testify under subpoena at an administrative hearing before the [former] agency within two years of the employee's separation from State service.

Pursuant to its authority under Executive Law §94(15), the Commission concludes that the post-employment restrictions of Public Officers Law §73(8) do not preclude a former employee from appearing under subpoena at an administrative hearing before his or her former agency during the two-year post-employment period. However, the former employee's testimony, depending on the circumstances, may provide information that a violation of the "revolving door" has occurred outside of the permitted, subpoenaed appearance.

Background

[The private attorney] represents a charity which is currently involved in an administrative hearing before [the State agency] regarding the agency's renewal of operating certificates for several of its [residences]. [The private attorney] seeks to serve a subpoena on the charity's assistant resident manager to require her personal appearance as a witness. This individual had worked for [the State agency] until [ ], less than two years prior to the anticipated date of her appearance. According to [the private attorney], while employed with [the State agency], the individual did not have any involvement with the charity.

[The private attorney] states that the former [State agency] employee is a critical witness to establish the charity's case. She had involvement, on behalf of the charity, with [the State agency's] survey of [the charity's residence], which is currently at issue in the administrative hearing. [The private attorney] states that he believes the "revolving door" statute was intended to apply to voluntary appearances, not appearances made pursuant to a subpoena.

Applicable Statute

Public Officers Law §73(8) states, in relevant part, that:

  1. 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.

  2. 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 or she personally participated during the period of his or her 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. Public Officers Law §73(8)(a) contains a two year absolute bar on an employee's appearing, practicing or rendering services for compensation in any matter before his or her former agency. Public Officers Law §73(8)(b) permanently prohibits former employees from appearing before any agency or rendering compensated services with regard to any matter in which they were directly concerned and personally participated. Therefore, it is clear that a former employee may not voluntarily appear at an administrative hearing before his or her former agency as a witness for a party adverse to the agency within the two year post-employment period or at a hearing which concerns a matter covered by the lifetime bar of Public Officers Law §73(8)(b).

Notwithstanding the above, the Commission recognizes that a former State employee, like all individuals, must comply with a properly issued subpoena.(1) Since an appearance pursuant to a subpoena is under legal compulsion, the person upon whom it is served cannot be in violation of Public Officers Law §73(8) by complying. An act compelled by law should not subject the individual engaging in that act to be found in violation of another law. Therefore, a former employee may appear under subpoena at an administrative hearing before his or her former agency as a witness for a party adverse to the agency during the two-year post-employment period or in connection with a matter in which he or she was directly concerned and personally participated.

It should be noted, however, that a former employee's compelled testimony may reveal information that he or she has violated the "revolving door" outside of the permitted appearance. Such a violation would not fall within the protection of the subpoena, which would not be a shield against prosecution of any ethics violation which may be so revealed. Furthermore, the person testifying cannot use a subpoena as a shield where he or she receives a witness or consultant fee beyond the statutory fee to testify.

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 21, 1994

Endnotes

1. Civil Practice Law and Rules §2308(b) provides that anyone who disobeys a non-judicial subpoena, such as one issued in connection with an administrative proceeding, may be ordered by a court to comply with the subpoena, fined up to fifty dollars and be subject to damages sustained by reason of the failure to comply. Further failure to comply with a subpoena may cause the person to be held in contempt.

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URL: http://www.nysl.nysed.gov/edocs/ethics/94-19.htm