New York State
Ethics Commission


Advisory Opinion No. 94-20: Application of the two year bar of Public Officers Law §73(8)(a); appearance before a multi-member panel including former agency representatives appointed by a private sector entity is prohibited; agency jurisdiction is necessary to finding a "matter."

Introduction

The following advisory opinion is issued in response to a request submitted by [counsel to a not-for-profit corporation], and [a State agency counsel], asking that the Commission issue a formal opinion reconsidering its prior informal opinion which applied Public Officers Law §73(8) to certain activities of [a former State employee]. [The former State employee] is now an employee of [the not-for-profit corporation].

Pursuant to its authority under Executive Law §94(15), the Commission concludes that the post-employment restrictions of Public Officers Law §73(8)(a) prohibiting a former State employee from appearing, practicing or rendering services for compensation in a matter before his or her former State agency preclude [the former State employee] from attending meetings and otherwise appearing before an advisory board created by [the not-for-profit corporation] which includes [the former State agency] representatives as members, appearing before [the former State agency] with regard to the grant or requesting data from [the former State agency]. However, she may render services pursuant to the grant and prepare a report that will be reviewed by [the former State agency] because there is no "matter" before [the former State agency]. Further, she may attend meetings of an ad hoc advisory panel established by the [State agency A], which includes representatives from [the former State agency], and provide generalized training to [not-for-profit corporation] affiliates under the conditions set forth in this opinion.

Background

The original request for an opinion was submitted by [the former State employee] on April 11, 1994. She indicated that she was about to be employed by [a not-for-profit corporation] in a position funded through a $190,000 grant from the [State agency A] and [State agency B]. The purpose of the grant was to develop managed care programs at certain [not-for-profit corporation's] diagnostic and treatment clinics. The grant would also require the collection of data concerning primary health care services delivered to [ ] individuals at [not-for-profit corporation] clinics and, working with providers and [State agency B], the agency with the authority to approve managed care programs, the development of a capitated rate for the managed care of [ ].

In an informal opinion, the Commission permitted [the former State employee] to accept the position, even if [the former State agency], were to review the eventual work product. However, it held that the two year post-employment restrictions of Public Officers Law §73(8) prevented [the former State employee] from having any contact with [the former State agency's] employees or submitting any documents for the agency's review. The Commission also held that the revolving door statute would prohibit [the former State employee] from requesting data from [the former State agency], attending meetings where [the former State agency] employees would be present or discussing the progress of the grant with [the former State agency].

Following receipt of this opinion by [the former State employee], [counsel to the not-for-profit corporation] asked for reconsideration and provided the Commission with additional facts. His letter indicated that [the not-for-profit corporation], in its grant proposal to [State agency A], proposed to assist its twenty-two New York State affiliates in developing managed care programs in their diagnostic and treatment centers, which are licensed by [State agency B]. In addition, [the not-for-profit corporation] was to provide training for those affiliates so they might adequately prepare applications and comply with other necessary State and county requirements for the establishment of independent programs under contract with local departments of social services. The local [not-for-profit corporation] affiliates would prepare and submit applications and other required findings to [State agency A] after receipt of technical assistance and generalized training from the [not-for-profit corporation] project staff. The project would also include development of general protocols to ensure appropriate coordination between Medicaid managed care services and other special care services, including case management.

As an employee of [the not-for-profit corporation], [the former State employee] would direct the services provided under the grant. According to [counsel to the not-for-profit corporation], her responsibilities would include oversight and direction of all grant project activities, supervision of grant staff and development of the Medicaid managed care program. The project is intended to identify resources and information, collect and analyze data, and develop policies and quality assurance procedures. [The former State employee] would also act as liaison among the local [not-for-profit corporation] affiliates receiving authorization to operate Medicaid managed care programs.

Both [the not-for-profit corporation] and [the former State agency] officials are in agreement that [the former State employee] had no role in the writing of the grant, and that she had been selected by [the not-for-profit corporation] to head the grant project after [the not-for-profit corporation] had been awarded the contract. The grant document discusses [the State agency's] involvement with the planning and development of the grant and the meetings that took place among the various State agencies and [the not-for-profit corporation]. While [the former State agency] fully participated in these pre-grant meetings, agency officials state that [the former State employee] did not attend.

[Counsel to the not-for-profit corporation] argues that there will be no direct contact in violation of §73(8) between [the former State employee] and [the former State agency] because the licensing and regulatory authority over [ ] clinics is vested in [State agency B], and Medicaid managed care programs are under the supervision of [State agency A]. [The former State agency's] role, he states, is a limited one. The workplan section of the grant document, however, describes [the former State agency's] role as follows:

Project staff and participating [ ] clinics will work with [the former State agency] at both a state and regional level to coordinate efforts to provide primary health care services for this population. [The former State agency] approval of County plans to serve special care populations is required by law. [The not-for-profit corporation] has a long history of working with [the former State agency] to develop and provide needed services for individuals [ ] and will work vigorously with the agency on this new project.

[Counsel to the not-for-profit corporation] concedes: (1) that [the former State agency's] input will be necessary for individual county plans to serve special populations, but that input will be directly provided to counties evaluating the particular project applications submitted by [not-for-profit corporation] affiliates; (2) that [the former State agency's] staff may be asked by the local [not-for-profit corporation] affiliates to participate in work groups particular to those local programs, but these local programs will operate independently of [not-for-profit corporation's] project staff; and (3) that [the former State agency] has data, i.e., cost of services, that may be required by the project to support a reimbursement rate methodology.

[Counsel to the not-for-profit corporation] also notes that the work plan for the grant includes the establishment by [the not-for-profit corporation] of an advisory board composed of representatives from [ ] clinics, [the former State agency], [State agency A] and [State agency B]. The board, to be chaired by [the former State employee], will advise [the not-for-profit corporation], not [State agency B] or [State agency A]. It is expected to review the steps of the work plan and provide advice and input to [the not-for-profit corporation's] project staff, and to oversee and advise on data collection and interpretation by the staff. [Counsel to the not-for-profit corporation] asserts that the advisory board would have no direct authority over the project. The actual text of the grant document provides:

According to [counsel to the not-for-profit corporation], the advisory board will be comprised of six individuals to be appointed by the executive director of [the not-for-profit corporation] based on the recommendations of [the former State employee] and three other individuals at [the not-for-profit corporation]. These advisory board members are yet to be named.

In addition to the advisory board, [State agency A] has established an ad hoc advisory panel of approximately 10-15 members to review general issues related to the managed care of individuals [ ]. The panel's subjects include the [not-for-profit corporation] project. There is no reference to the advisory panel in the [not-for-profit corporation] grant. The panel will be composed of [the former State employee], as [the not-for-profit corporation's] representative, and representatives of [State agency A], [State agency B] and [the former State agency]. She has no role in naming the other members of the panel.

[The former State employee] anticipates appearing before the advisory board and the advisory panel. She may also request data from [the former State agency].

[Counsel to the not-for-profit corporation] argues that [the former State employee's] attendance at advisory board and advisory panel meetings at which [the former State agency] representatives would also be present does not violate the "revolving door" because there is no "matter" before [the former State agency]. He emphasizes that the project is not under the jurisdiction of [the former State agency] and that [the former State agency's] decision-making authority over the project is limited to approval of the county programs for special care populations and oversight over the local [not-for-profit corporation] programs, which will operate independently of the project. He also argues that [the former State employee's] communications with the advisory board and advisory panel are not covered by the two year bar, since, unlike the lifetime bar, the statute providing for the two year bar does not specifically prohibit "communications."

Applicable Statute

Public Officers Law §73(8)(a) states, in relevant part(1), that:
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.

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.

The Commission notes that in her initial request, [the former State employee] did not mention either the advisory board or the advisory panel. She stated only that [the former State agency] "should be advised about activities which will occur during the grant." It is now clear that she anticipates serving as chair to the advisory board and serving as a member of the advisory panel, both of which include [the former State agency] representatives. Thus, the Commission has before it a question not originally considered: does her attendance at a meeting of the board or the panel constitute a prohibited "appearance" before [the former State agency] during the two year post-employment period?

In Advisory Opinion No. 89-3, the Commission held that the mere presence of one Executive Department officer on a Siting Board established by statute does not make the Siting Board a part of the Executive Department for purposes of applying the two year bar. In that opinion, the Commission stated:

There are a number of boards and councils on which heads of State departments sit by virtue of the position which they hold. The fact that these individuals serve on such boards and councils because of their position does not make those boards and councils part of the State agency from which the department head comes.

Critical to that opinion was the Board's independent status as a State agency created by statute with a statutory mission separate from the agencies which comprise it. This is not the case here.

In the instant matter, the advisory board is a creature of the grant to directly advise [the not-for-profit corporation], a private entity. By the terms of the grant, [the former State agency] representatives must be included on the board. [The not-for-profit corporation] will name the six members, including [the former State agency] representatives. [The former State employee] is to chair the board, and she is empowered to recommend individuals for membership, including [the former State agency's] representatives, to [the not-for-profit corporation's] executive director. The advisory board, by [counsel to the not-for-profit corporation's] own acknowledgement, will review the steps of the work plan, provide advice and input, and oversee and advise on data collection and interpretation by the project staff. According to the grant document, the board will provide direction to the [not-for-profit corporation] staff, review and make recommendations to client profile instruments, and work with the [not-for-profit corporation] staff, [State agency B], and [State agency A] to establish necessary controls.

This is very different from the governmentally established independent board that was before the Commission when it issued Advisory Opinion No. 89-3. Here, the board was created by a private entity under a grant on which the former employee is working and is totally intertwined with the work of the former employee. She chairs the board and recommends its members. In these circumstances, the board is not independent of the employee's former agency, when that agency sits as one of its members. Therefore, the Commission concludes that when [the former State employee] chairs a meeting of the advisory board or appears before the board, she is making a prohibited appearance before her former agency.

The advisory panel is somewhat different. It was established by [State agency A], a government agency, and was created to advise [State agency A] concerning generic issues related to managed care. It involves one State agency asking other State agencies, such as [the former State agency] and [State agency B], as well as local government agencies and interested private parties, including [the not-for-profit corporation], to join in discussions of issues of interest to all concerned. [The former State employee] will not be its chair nor will she have any role in the selection of its members.

Thus, the structure of the advisory panel is much closer to that of the Siting Board discussed in Advisory Opinion No. 89-3 than is the structure of the advisory board. In addition, the panel is not mentioned in the [not-for-profit corporation] grant document and it has no specific role in advising the grant. Its members are named by [State agency A] with no input from [the not-for-profit corporation] or [the former State employee]. Unlike the board, which has substantive responsibilities with respect to the grant, the panel is concerned with generic issues and is strictly advisory.

Therefore, the Commission concludes that [the former State employee], although prohibited from appearing before the advisory board, may attend meetings of the advisory panel without making a prohibited appearance before [the former State agency].(2)

The next question is whether the grant is a "matter" before [the former State agency].

Neither the advisory board nor the advisory panel nor [the former State agency] has the statutory power to review, approve, or sanction the grant or the work product developed by the project. [State agency B] and [State agency A] have ultimate authority for approving, respectively, managed care plans and Medicaid reimbursement rates. These agencies have requested [the former State agency's] advice, but [the former State agency] has no authority over the project or its eventual proposals. Thus, there is no matter before [the former State agency], as it sits only as a member of the advisory board and advisory panel, and acts only as a consultant to [State agency B], [State agency A], and [the not-for-profit corporation].

Therefore, the Commission concludes that [the former State employee] may work on the grant project, as it does not relate to a matter before [the former State agency].

However, although [the former State employee] may work on the project and participate in the advisory panel, she may not appear before [the former State agency] during the two year post-employment period. The Commission has held that a "communication" by a former employee with his or her former agency amounts to an appearance before that agency, and is prohibited by §73(8). In Advisory Opinion No. 89-7, the Commission was faced with a former State employee who wished to contact his former agency on behalf of a client within two years of termination from State service regarding "generic issues" relating to the policies and procedures of the agency. The Commission held that these generic issues "fall within the 'other matters' category of prohibited circumstances and would be barred whether or not compensation is received for services rendered." [See also Advisory Opinion No. 94-6.] The appearance was barred even though it did not relate to a specific matter before the agency.

Therefore, Public Officers Law §73(8)(a) prohibits [the former State employee] from communicating with [the former State agency] officials, whether in person, through correspondence or via telephone, other than through the advisory panel for the two years following her separation from the agency. This limitation extends to preventing [the former State employee] from initiating contact with the [the former State agency] representatives to the panel, even on panel business. It would be virtually impossible to limit the subject matter of such communications. Any follow up requiring communication with [the former State agency's] representatives on the panel may be handled by other members of the project's staff.

[Counsel to the not-for-profit corporation] also raised three other issues regarding [the former State employee's] proposed work: whether [the former State employee] may request data from [the former State agency]; whether she can prepare the grant's report; and whether she may provide generalized training to [not-for-profit corporation] affiliates.

[The former State employee] may not request data from [the former State agency]. In Advisory Opinion No. 89-7, the Commission expressly held that a "communication" by a former State employee on behalf of a client or any other person amounts to an appearance or practice before his or her former agency and is prohibited by the two year bar of Public Officers Law §73(8). In that same opinion, the Commission held that a former State employee may not submit a Freedom of Information Law request on behalf of a client to his or her former State agency during the two year post-employment period. In Advisory Opinion No. 94-6, the Commission noted that one of the reasons the "revolving door" provision was enacted was to preclude the ability of a former employee to access former colleagues, even if it is with the purpose of obtaining otherwise public information. Therefore, the Commission concludes that [the former State employee] would violate the two year bar by requesting data from [the former State agency], whether or not such data is publicly available, within two years of her separation from [the former State agency] service. However, other staff members working on the project may request such information.

In the informal opinion issued to [the former State employee], the Commission permitted the preparation of a report that [the former State agency] will "review" after it has been completed. As the Commission has previously found that [the former State employee] will not be working on a matter before [the former State agency], she may prepare a report that will be reviewed by the agency.

The remaining question is whether [the former State employee] may provide generalized training to [not-for-profit corporation] affiliates. [Counsel to the not-for-profit corporation] argues that [the former State employee] may provide such training to [not-for-profit corporation] affiliates pursuant to the Commission's holding in Advisory Opinion No. 90-3. As long as she is not involved in any way in an actual application to be submitted by a [not-for-profit corporation] affiliate to her former agency, she may provide such training. This is so even if [the former State agency] employees would be part of the trained group, provided that the training was open to the public.

Conclusion

The Commission concludes that the post-employment restrictions of Public Officers Law §73(8)(a) prohibiting a former State employee from appearing, practicing or rendering services for compensation in a matter before his or her former State agency preclude [the former State employee] from attending meetings and otherwise appearing before an advisory board created by [the not-for-profit corporation] which includes [the former State agency] representatives as members, appearing before [the former State agency] with regard to the grant or requesting data from [the former State agency]. She may render services pursuant to the grant and prepare a report that will be reviewed by [the former State agency]. She may also attend meetings of an ad hoc advisory panel established by [State agency A], which includes representatives from [the former State agency], and provide generalized training to [not-for-profit corporation] affiliates under the conditions set forth in this opinion.

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.

Concur:

Joseph M. Bress, Chair

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

Dissent:

Donald A. Odell, Member

Dated: November 21, 1994


Endnotes

1. In its informal opinion, the Commission found that [the former State employee's] activities on the grant did not involve application of the lifetime bar provision of Public Officers Law §73(8)(b).

2. The Commission would reach a different result if instead of being a former [State agency] employee, [the former State employee] was a former employee of [State agency A]. In that case, she could not be a member of the advisory panel, for in doing so she would be appearing before [State agency A], her former State agency.



URL: http://www.nysl.nysed.gov/edocs/ethics/94-20.htm