New York State
Ethics Commission

Advisory Opinion No. 95-14: Application of Public Officers Law §73(8) to a State employee who anticipates leaving State service to work for a private entity with which his agency has an agreement to provide certain services.

INTRODUCTION

The following advisory opinion is issued in response to an inquiry from [], a Senior Personnel Associate for the State University of New York ("SUNY") at []. He asks how the post-employment restrictions of Public Officers Law §73(8) would apply to him if he were to accept a position with a company that has an agreement with SUNY to offer an optional retirement plan to interested SUNY employees.

Pursuant to the authority vested in it by the Executive Law §94(15), the State Ethics Commission ("Commission") hereby renders its opinion that [the requesting individual] may, within two years of leaving SUNY at [], accept a position with the company and render services for compensation on behalf of the company with regard to SUNY's optional retirement plans, including discussing the company's products with employees of his former agency.

BACKGROUND

[The requesting individual] is currently employed by SUNY as a Senior Personnel Associate. His local title is []. In this capacity, [the requesting individual] administers pension benefit plans for SUNY employees.(1) His job duties include interpreting the benefit plans, enrolling employees, processing necessary paperwork and answering employee questions.

Pursuant to Article 8-B of the New York State Education Law, SUNY administers Optional Retirement Plans ("Plans"), which permit electing employees to direct employer and employee retirement contributions toward the purchase of contracts providing retirement and death benefits. Prior to July, 1994, the Teachers Insurance and Annuity Association and College Retirement Equities Fund ("TIAA-CREF") was the only designated insurer for the Plan. In June, 1994, SUNY entered into agreements with three other insurance companies, or alternate funding vehicles ("AFV"), to offer annuity plans and other retirement products to interested SUNY employees. The AFVs receive no income from SUNY; their income is derived from selling their products to individual employees. SUNY has no role in any employee's choice of plan, nor does SUNY process an employee's selection. By agreement, neither the State of New York nor SUNY may be a party to any annuity contract issued by an AFV.

[], [the requesting individual] makes available information concerning SUNY's Plans by directing interested employees to literature prepared by the AFVs. [The requesting individual] does not personally provide any specific information, direction or guidance to employees regarding the AFV programs. Those seeking additional information must contact an AFV representative directly. [The requesting individual] was not involved in SUNY's contracting for these programs.

[The requesting individual] has been offered a full-time position with one of the AFVs to represent the company in the [] area. His position would include contact with employees at several SUNY campuses and involve educating eligible employees about the insurance company and its investment choices.

[The requesting individual's] inquiry seeks guidance on the application of the post-employment restrictions of Public Officers Law §73(8) to his prospective employment.

APPLICABLE LAW

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

(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 personally participated during the period of his 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. The post-employment restrictions of §73(8) are of two types: the two-year bar and the lifetime bar. The two-year bar precludes a former employee from appearing, practicing or receiving compensation for services rendered before his or her former agency within two years of termination. The lifetime bar applies to prohibit appearing, practicing, communicating or otherwise rendering services before any State agency or receiving compensation for such services in relation to any case, proceeding, application or transaction involving a matter with which he or she was directly concerned and personally participated or which was under his or her active consideration while in State service.

With regard to the two-year bar, the agreement between SUNY and the AFV does not provide for the contractor to perform a State function or render services for SUNY. Rather, it authorizes the contractor to serve SUNY employees. Under the agreement SUNY does not compensate the AFVs for making their retirement products available to its employees. Accordingly, [the requesting individual], as an employee of the AFV, would not be compensated pursuant to the agreement between SUNY and the AFV.(2)

Furthermore, [the requesting individual's] proposed employment would involve educating interested employees about the retirement products offered by the AFV and enrolling employees in the program. SUNY would not be involved in processing the AFV enrollments or transferring SUNY employees to the AFV. Thus, [the requesting individual] would not be rendering services for compensation on a "matter" before SUNY. Accordingly, he may, within two years of leaving SUNY at [], accept a position with an AFV and advise SUNY employees, including employees at [], concerning AFV products.

Concerning the lifetime bar, the Commission has previously held that personal participation and direct concern in a specific case requires more than an awareness of or informal conversation concerning the circumstances.(3) Mere acquaintance or knowledge of a fact or circumstance is insufficient to trigger the lifetime bar.(4) Here, [the requesting individual's] current responsibilities making Plan information available to SUNY employees by providing them with pamphlets and other literature, without providing specific guidance or direction, does not constitute sufficient personal involvement to rise to the level of direct concern with and personal participation in the AFV programs. Furthermore, he was not involved in SUNY's selecting or contracting with the AFVs. Therefore, [the requesting individual] may render services on behalf of the AFV with respect to SUNY employees. There are no related "transactions" from which he is barred.

CONCLUSION

The Commission concludes that [the requesting individual], within two years of leaving State service, may accept a position with an AFV that has an agreement with SUNY to offer an optional retirement plan to SUNY employees and render services on behalf of the AFV with respect to its plan, including advising SUNY employees of the AFVs products.

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: April 25, 1995

Endnotes

1. [Footnote deleted]

2. By contrast, see for example, Advisory Opinion No. 94-4, where the former employees would be compensated pursuant to an agreement between a State agency and a private contractor for rendering services for which the State had contracted.

3. Advisory Opinion No. 89-3.

4. Advisory Opinion No. 90-16.

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