|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.|
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.
[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.
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.
Joseph M. Bress, Chair
Barbara A. Black,
Angelo A. Costanza,
Robert E. Eggenschiller,
Donald A. Odell, Members
Dated: November 21, 1994
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.