New York State
Ethics Commission


Advisory Opinion No. 95-5: Application of the lifetime prohibition contained in Public Officers Law §73(8) to a former employee of the Department of Environmental Conservation.

INTRODUCTION

The following advisory opinion is issued in response to a request by [a former State employee] of the New York State Department of Environmental Conservation ("DEC"), for an opinion concerning application of the lifetime bar of the Public Officers Law to his proposed service as an expert witness for the Town of [ ] in a pending federal court action.

Pursuant to the authority vested in it by Executive Law §94(15), the State Ethics Commission hereby renders its opinion that [the former State employee] may testify as an expert witness in federal court about the [Town] landfill remedial investigation/feasibility study and remedial design process only if the State Attorney General forwards to the Commission a certification that the conditions set forth in Public Officers Law §73(8-a) are met, or if he testifies pursuant to a subpoena and neither he nor his firm receives more than the statutorily set witness fees.

BACKGROUND

[The former State employee] is currently employed as [ ] for [a private company], in Albany, New York. He was formerly employed by DEC, [ ] from [ ] through [ ], when he terminated his State service. [The former State employee] asserts that during the period of his State employment he did not supervise any departmental sections; he was a staff level [ ] reporting directly to a section chief in the DEC [Bureau]. [The former State employee] was not designated a policymaker by his appointing authority.

During the course of [the former State employee's] State employment, DEC investigated the [Town's] landfill and declared it to be a hazardous waste site. Pursuant to 6 NYCRR Part 375, DEC mandated a clean-up. The Town entered into a consent order for its remediation, and [the former State employee] was designated as project manager during the study and remedial design processes. Those responsibilities required that he conduct a remedial investigation(1) and a feasibility study(2), and serve as the State's point of contact with the Town.

The State granted the [Town] [funding] to clean up its landfill. This grant was pursuant to Title 3 of the 1986 Environmental Quality Bond Act ("EQBA"), which authorizes the State to grant funds to qualified local municipalities for hazardous waste site clean-ups. Recipient towns are obligated to seek reimbursement for the clean-up costs, with 75% of the amount recovered to be returned to the State.

Acting pursuant to EQBA, the [Town] sought reimbursement from the industrial users primarily responsible for generating the hazardous waste found in its landfill. Unable to obtain reimbursement through negotiation, the Town brought an action against the industrial users in federal court under the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), the federal law governing the clean-up of hazardous waste sites.(3) Attorneys for the Town retained [the private company] to provide technical support and expert witness testimony in the CERCLA cost recovery action. Attorneys for the industrial users/defendants have argued that the lifetime bar of the Public Officers Law prohibits [the former State employee] from appearing before the federal court as an expert witness in this matter. The State is not a party to this litigation, although, as noted, it will receive 75% of any amount recovered.

APPLICABLE STATUTE

The lifetime bar found in Public Officers Law §73(8) limits certain post-employment activities by former State employees. It states, in relevant part, that:

(b) 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. . . .

This subdivision permanently prohibits former State employees from appearances or the rendering of services pertaining to transactions in which they were directly concerned and personally participated, or which they actively considered while in State service. An exception, however is found in §73(8-a):

The provisions of paragraphs (a) and (b) of subdivision eight of this section shall not apply to any such former state officer or employee engaged in any of the specific permitted activities defined in this subdivision that are related to any civil action or proceeding in any state or federal court, provided that the attorney general has certified in writing to the state ethics commission, with a copy to such former state officer or employee, that the services are rendered on behalf of the state, a state agency, state officer or employee, or other person or entity represented by the attorney general, and that such former state officer or employee has expertise, knowledge or experience which is unique or outstanding in a field or in a particular matter or which would otherwise be generally unavailable at a comparable cost to the state, a state agency, state officer or employee, or other person or entity represented by the attorney general in such civil action or proceeding. For purposes of this subdivision the term "permitted activities" shall mean generally any activity performed at the request of the attorney general's designee, including without limitation:

(a) preparing or giving testimony or executing one or more affidavits;

(b) gathering, reviewing or analyzing information, including documentary or oral information concerning facts or opinions, attending depositions or participating in document review or discovery;

(c) performing investigations, examinations, inspections or tests of persons, documents or things;

(d) performing audits, appraisals, compilations or computations, or reporting about them;

(e) identifying information to be sought concerning facts or opinions; or

(f) otherwise assisting in the preparation for, or conduct of, such litigation.

Nothing in this subdivision shall apply to the provision of legal representation by any former state officer or employee.(4)

DISCUSSION

As noted above, the post-employment activities of former State officers and employees are governed by Public Officers Law §73(8)(b), which prevents former employees from utilizing their "insider" knowledge of specific projects for their own benefit or that of a client. As stated by the Commission in Advisory Opinion No. 88-1:
This subdivision (§73(8)) is generally referred to as the "revolving door" provision, for it sets the ground rules for what an individual may do with the knowledge, experience and contacts gained from public service after they terminate their employment with a State agency.

In the instant case, the Commission must decide whether a former employee may make a compensated appearance before a federal court in a case in which he was directly concerned and personally participated while in State service.

[The former State employee] submits that he was directly involved and personally participated while in State service as project manager for the [Town] landfill site, but he argues that his compensated testimony in federal court on behalf of the [Town] does not constitute an appearance before DEC nor does it constitute work on the same transaction. The fact that it is not an appearance before DEC is irrelevant, since the lifetime bar prohibits an appearance anywhere.(5) With regard to the transaction, his work on the litigation is not a new matter because litigation, by its nature, examines all relevant facts, which is likely to include at least some of the aspects on which [the former State employee] worked while at DEC.

[The former State employee's] testimony would, however, be permissible, if there were a certification by the State Attorney General pursuant to Public Officers Law §73(8-a), cited above. This recently enacted expert witness exception to the revolving door provision of the Public Officers Law reflects the State's desire to permit expert testimony from former employees when useful to the State.

For an individual to be covered by this exception, the Attorney General must certify in writing to the Commission, with a copy to the requesting individual, that the services sought are to be rendered on behalf of the State, a State agency, State officer or employee, or other person or entity represented by the Attorney General, and that the requesting individual has expertise, knowledge or experience which is unique or outstanding in the field or in the particular matter or which would otherwise be generally unavailable at a comparable cost to the State, a State agency, State officer or employee, or other person or entity represented by the Attorney General in such civil action or proceeding. Should the Attorney General provide such a certification to the Commission, the requesting individual's expert testimony would be permissible.

In the alternative, [the former State employee] could testify without being paid, other than the statutory witness fee. The Commission has held that §73(8)'s post-employment restrictions do not apply to a former employee who is a witness in a proceeding testifying pursuant to a subpoena. In Advisory Opinion No. 94-19, the Commission recognized that:

. . . a former employee, like all individuals must comply with a properly issued subpoena. 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.

This exception to the post-employment restrictions barring receipt of compensation for services rendered permits the receipt of statutorily set fees for serving as a witness.(6) The Commission noted, in Advisory Opinion No. 94-19, that 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.

Consequently, [the former State employee] may provide services as an expert witness by either obtaining the Attorney General's certification under §73(8-a) or by testifying under subpoena as long as neither he nor his firm seeks or receives compensation for his services in excess of the fees set by statute.

CONCLUSION

The Commission concludes that [the former State employee] may testify as an expert witness in federal court about the [Town] landfill remedial investigation/feasibility study and remedial design process only if the State Attorney General forwards to the Commission a certification that the conditions set forth in Public Officers Law §73(8-a) are met, or he testifies pursuant to a subpoena and neither he nor his firm receives more than the statutorily set witness fees.

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: January 17, 1995


Endnotes

1. Persons performing remedial investigations are required to analyze a potential hazardous waste site and define the extent of the contamination. Tests are performed on area wells; surveys are conducted; and analysis is performed of all surrounding air, water (surface and ground), soil, etc. These investigations consist primarily of data gathering.

2. Persons performing feasibility studies attempt to determine the most cost effective, efficient method of site clean-up using the data obtained.

3. 42 U.S.C. §9607 et.seq. It should be noted that a natural resource damage cause of action under CERCLA may be pursued only in federal court.

4. L.1994, c. 170.

5. See Advisory Opinion No. 93-13, p.4.

6. See also Advisory Opinion No. 93-15 concerning services performed pro bono by a law firm.



URL: http://www.nysl.nysed.gov/edocs/ethics/95-05.htm