New York State
Ethics Commission


Advisory Opinion No. 94-21: Application of the revolving door provision of Public Officers Law §73(8)(a) to a former employee who seeks to contract with his former agency.

Introduction

The following advisory opinion is issued in response to a request submitted by [a State employee] who seeks to serve as a per diem hearing examiner, hired by contract, for [his former State agency] after he retires from that 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)(a) prohibit a former State employee from contracting with his or her former State agency during the two year post-employment period.

Background

[The requesting individual] is currently employed by [a State agency] as a hearing examiner. He seeks the Commission's opinion as to whether he may serve as a per diem hearing examiner on contract with [the former State agency] after he retires from the agency at the end of this year. In a previously issued informal opinion, the Commission determined that such service would violate the two year bar provision of Public Officers Law §73(8)(a).

Applicable Statute

Public Officers Law §73(8)(a) states, in relevant part, 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. Paragraph (a) bars a former State employee from appearing, practicing or rendering services for compensation in any matter before his or her former agency for two years.

In response to the Commission's informal opinion holding that these restrictions would prohibit [the requesting individual] from serving as a contractual per diem examiner, [he] questioned the Commission's interpretation of the term "appearance." He argued that parties and attorneys "appear" before an examiner who acts in a quasi-judicial capacity, but an examiner should not be "deemed to be 'appearing' before the agency who (sic) hires him."

[The requesting individual's] position is inconsistent with Advisory Opinion No. 89-9. There, the Commission considered the same issue as presented by the instant case: whether a contract between a former employee and his former State agency constitutes a prohibited appearance. The Commission noted that the New York State Attorney General, in interpreting Public Officers Law §73(8), as it read prior to its amendment in 1987, determined that the submission of a contract proposal by a former employee to his or her former State agency constituted a prohibited appearance during the two year post-employment period. Following that precedent, the Commission rejected the argument that a sole source contract between the former employee and his former State agency should be outside the meaning of "appearance" for purposes of the Public Officers Law. While noting that the federal government's post-employment provisions permit agencies and their former employees to contract, the Commission found that the absence of an exception in §73(8) was an indication that the Legislature in New York did not wish to exempt such contracts.

In another situation, the Commission, in Advisory Opinion No. 91-9, concluded that a former employee of the Public Employees Relations Board ("PERB") could not serve as a mediator/fact finder or arbitrator on panels administered by his former agency during the two year post-employment period. The Commission found that the required submissions of documents to PERB for review and approval constitute 'appearances' before PERB, prohibited by Public Officers Law §73(8). The Commission made this finding because PERB's administration of the panels required the exercise of substantive judgment and was not ministerial.

That opinion was challenged in the Supreme Court of Albany County. The Court upheld the Commission's determination, Kelly v. New York State Ethics Commission (Alb. Co - Index No. 7093-91), finding that the former employee's proposed service as a mediator/fact finder or arbitrator for his former agency undermined the public's trust and confidence in government. It noted that the former employee might be afforded preferential treatment in appointment to the mediation and arbitration panels, that he might receive preferential treatment in assignments, and that his recommendations in specific cases might be given greater deference by his former agency.

The case presented here is similar. In his proposed capacity as a contractual per diem hearing officer, [the requesting individual] would be rendering decisions for review and approval by [the State agency], his former agency. Further, his former colleagues might afford him preferential treatment and deference, as in the Kelly case. For all of these reasons, [the requesting individual's] proposed service as a contractual hearing officer for [the former State agency] is barred for a period of two years after he leaves State service.

Conclusion

The Commission reaffirms its prior decisions and holds that Public Officers Law §73(8)(a) prohibits [the requesting individual] from serving as a contractual per diem hearing examiner for [his former State agency] for two years after he retires from the State agency.

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



URL: http://www.nysl.nysed.gov/edocs/ethics/94-21.htm