|Advisory Opinion No. 95-19:||Determination of "former agency" for purposes of application of the post-employment restrictions of §73(8) of the Public Officers Law.|
Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by §94(15) of the Executive Law, the Commission hereby renders its opinion that, as the Higher Education Services Corporation ("HESC"), SUNY and the Executive Chamber are all [the requesting individual]'s former State agencies for purposes of Public Officers Law §73(8)(a), he may not appear, practice or render services for compensation on any matter before any of them after termination of his State service for the periods of time set forth in the opinion. He may, however, appear before the State Legislature and the Division of the Budget. He is further subject to the lifetime bar restrictions contained in Public Officers Law §73(8)(b) on which the Commission cannot opine at this time because of insufficient knowledge of the facts.
[The requesting individual] states that during the last two and one-half years of his period of service at HESC, he provided, on a regular basis, assistance to the Governor on issues unrelated to HESC. Generally, he would spend a number of half days each week in the Executive Chamber offices, working on matters concerning . He would also meet with the Division of the Budget on various fiscal and programmatic issues related to . [The requesting individual] indicated to the Commission that although he spoke with legislative employees on occasion, he was not directly involved in negotiating bills. This task was generally left to Chamber staff. [The requesting individual] states that he "was not paid by the Executive Chamber for this work, nor . . . ever officially appointed to an Executive Chamber position or title."
Based on this employment history, [the requesting individual] has asked the Commission to determine whether he may, after leaving SUNY, serve as a lobbyist for a "statewide [ ] organization," representing his client in matters before the State Legislature, Executive Chamber and the Division of the Budget.
Public Officers Law §73(8) states, in relevant part, that:
(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 or she personally participated during the period of his or her service or employment, or which was under his or her active consideration. . . .
The purpose of the revolving door subdivision is to preclude the possibility that former State employees may leverage their knowledge, experience and contacts gained in State service to their own advantage or that of a client, thereby securing unwarranted privileges, consideration or action.
In the instant case, the Commission, in reaching a decision on the two year bar, must begin by determining [the requesting individual]'s former State agency. The Commission interprets the statutory language of §73(8)(a) to prohibit a former employee who worked for more than one State agency from appearing, practicing or rendering services for compensation on a matter before each State agency for which he or she worked within the last two years of State service.
When an employee leaves one State agency and moves to another and, then, within two years of the move, leaves State service, the bar contained in §73(8)(a) runs for both agencies from the time of departure from the State.(1) To conclude that this bar serves to prohibit only appearances before the last State agency for which a former employee worked would create an undesirable and unintended result: an employee could leave Agency One and move to Agency Two shortly before terminating State employment, thereby permitting him or her to immediately appear before Agency One even if the employee spent many years with that agency. This conclusion is consistent with the determination made by the Commission in Advisory Opinion No. 90-22. There, "dual agency status" was found for purposes of §73(8) where an employee of one agency served as the administrator of a second agency. The Commission noted:
[t]o find otherwise would result in a State employee serving one agency, compensated by another and escaping the "revolving door" limitation with the first agency. Such "use" of the system, even if unintended, cannot be permitted to effect an evasion of the ethical requirements of this subdivision. The post-employment limitation was enacted to prevent the use of "insider knowledge" and private contacts to one's personal benefit or the benefit of others.
Having multiple former agencies does not mean, however, that the restrictions contained in §73(8)(a) continue for two years from the time of leaving State service for all of the agencies the former employee served. The purpose of the revolving door statute is effectuated if the two year preclusion is measured from the date the former employee left each agency. This means that in the instant case, [the requesting individual], as a current employee of SUNY, would be prohibited from appearing, practicing or rendering services for compensation before SUNY for two years after his leaving. He would also be prohibited from appearing before HESC (and, as will be discussed below, the Executive Chamber) after terminating his position with the State. However, since [the requesting individual] left his position at HESC in August 1994, the §73(8)(a) bar would expire in August 1996.
Given this analysis, [the requesting individual] clearly has more than one former agency. The next issue for the Commission is whether, in addition to SUNY and HESC, the Executive Chamber should be considered one of his former agencies for purposes of the two year bar.(2)
From 1988 to August 1994, [the requesting individual], , served as [an employee] of HESC. During his last two and one-half years in that position (February 1992 to August 1994), he also performed regular, on-going duties for the Executive Chamber. Specifically, [the requesting individual] spent a portion of each work week providing assistance to the Governor on matters concerning [ ]. These duties included developing legislative proposals and bill language as well as meeting with Budget staff on occasion to discuss fiscal and programmatic issues of concern to the Governor. This was unrelated to [the requesting individual]'s responsibilities at HESC.
The Commission concludes that [the requesting individual]'s activities during this period constituted a significant and regular assignment with the Executive Chamber. The "revolving door" restrictions apply when it can be shown that there is continuing "service" to a State agency, even where the employee is not compensated by the agency.(3) Accordingly, the duties [the requesting individual] performed on behalf of the Executive Chamber, which were beyond the scope of his duties as [an] HESC [employee], may be attributed to the Chamber.(4) Based on the information provided, i.e. the level of responsibility exercised by [the requesting individual], his regular and continuing responsibility working for the Governor on , the Commission determines that [the requesting individual] was in service to the Executive Chamber, as the term has been interpreted for purposes of §73(8)(a). Consequently, the Executive Chamber must be considered one of [the requesting individual]'s former agencies for purposes of the two year bar. This bar will terminate in August, 1996, two years after he last served in the Chamber.
As to the remaining two year bar issues, the Commission concludes that [the requesting individual] may appear before both the New York State Legislature and the Division of the Budget. The Legislature does not constitute a "State agency" for purposes of §73(8)(a). Appearances before the Legislature by a former State officer or employee are therefore not prohibited by this section.(5) With regard to the Budget Division, [the requesting individual] was never employed by nor did he provide services to the Division during his State employment. While the Division of the Budget is one of many divisions which make up the Executive Department, it is separate from the Chamber.(6) Accordingly, [the requesting individual] may appear before the Division immediately following his termination from State service.
The Commission now turns to the issue of how the lifetime bar may restrict [the requesting individual]'s anticipated post-employment activities. The lifetime bar serves to prohibit a former State employee from appearing, practicing, communicating or rendering services before any State agency or receiving compensation for any such services rendered on behalf of any person, firm or corporation in relation to any case, proceeding, application or transaction with which the individual was directly concerned and personally participated or which was under his/her active consideration. The Commission has determined in previous opinions that the lifetime bar extends to prohibited appearances rendered anywhere (Advisory Opinion No. 93-11). This includes compensated services rendered before the Legislature (Advisory Opinion No. 92-20) as well as Congress and federal branch agencies (Advisory Opinion No. 93-11).
Because [the requesting individual] has worked in the field of [ ] since 1973, he could be prohibited from representing a statewide  organization on a number of issues, as they are likely to involve the same transactions in which he was directly concerned and personally participated while in State government. The Commission has held that bills introduced in the same or different legislative sessions may constitute the same transaction, particularly when they affect the same or substantially the same population and present the same issues (Advisory Opinion No. 92-20). The Commission has also held that participation in the implementation of rule-making and rate-setting is sufficiently similar to working on the original enabling legislation to constitute a transaction that would trigger the lifetime bar (Advisory Opinion No. 93-2). However, a former State employee may use knowledge of his former agency's past policies and procedures to provide advice on a new or separate transaction (Advisory Opinion No. 91-2). With regard to an individual's direct concern with and personal participation in a case, proceeding, or transaction, the Commission has held that mere acquaintance with or knowledge of a fact or circumstance is insufficient to trigger the lifetime bar (Advisory Opinion No. 90-16).
The determination as to whether compensated service on various matters would constitute a lifetime barred transaction must be made on a case-by-case basis. The Commission, for purposes of the lifetime bar, must review the work on a specific transaction in which [the requesting individual] was engaged while serving in government to determine if the transaction is the same as one on which he will work after leaving government. The Commission cannot determine, without specific information, whether any of [the requesting individual]'s anticipated post-employment activities would violate the provisions of Public Officers Law §73(8)(b). At such time as facts are known to him, he is invited to seek additional advice from the Commission.
With regard to Public Officers Law §73(8)(b), the determination as to which of [the requesting individual]'s activities may constitute lifetime barred transactions before any entity must be made on a case-by-case basis based on facts not now known to the Commission or, perhaps, even to him.
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.
Barbara A. Black,
Angelo A. Costanza,
Robert E. Eggenschiller,
Donald A. Odell, Members
Joseph M. Bress, Chair, abstained from voting.
Dated: May 31, 1995
1. As explained infra., the "two year bar" may have less than two years to run for a State agency which the former employee left at an earlier time than the full two years for the last agency from which termination occurred.
2. In Advisory Opinion No. 89-3, the Commission determined that the Executive Chamber is a State agency separate and distinct from the Executive Department for purposes of Public Officers Law §73(8).
3. Advisory Opinion No. 90-22.
4. [footnote omitted]
5. [footnote omitted]
6. Executive Law §31. See also Advisory Opinion No. 89-3.