New York State
Ethics Commission


Advisory Opinion No. 95-22: Application of the revolving door provision of Public Officers Law §73(8)(a) to a former Department of Transportation employee engaged in recruitment activities related to his employer's contract with his former agency.

INTRODUCTION

The following advisory opinion is issued in response to a request submitted by [ ], a former employee of the New York State Department of Transportation ("DOT"), as to whether he may recruit, for a consulting engineering firm, inspectors who will perform services under contracts between the firm and DOT.

Pursuant to its authority under Executive Law §94(15), the New York State Ethics Commission ("Commission") concludes that the post-employment restrictions of Public Officers Law §73(8)(a) do not prohibit [the requesting individual] from recruiting such inspectors. He may not, however, engage in other activities that would cause him to appear or practice before DOT or render services under such contracts.

BACKGROUND

[The requesting individual] is a former DOT employee who has not been involved in project inspection for twenty years. He has an opportunity to take a part-time, seasonal position with a consulting engineering firm that performs inspection services under contract with DOT.

According to [the requesting individual], DOT retains consulting engineering firms to provide personnel to inspect the work of private contractors on State and municipal capital projects. For State projects, DOT assigns one of its employees to serve as the engineer-in-charge. The consultant provides a member of its firm as chief inspector to assist the DOT engineer, and it hires other inspectors, as necessary, to staff the project.

[The requesting individual's] sole duties for the engineering firm would be to recruit and hire the staff inspectors. He would work out of the firm's office and not be present at construction sites. [The requesting individual] has informed the Commission that he will be paid from the general administrative funds of the firm, which funds are not directly linked to the contract payments received from DOT.

The inspectors [the requesting individual] recruits would be hired only for the duration of each contract, and would be laid off when construction was not proceeding. He states that his main contact would be with the firm's chief inspector, although he may have casual contact with DOT's engineer-in-charge if DOT required an inspector with special expertise or if an inspector was not performing up to expectation. [The requesting individual] may also have contact with other DOT employees on an informal basis. He asks whether he may perform the proposed functions.

APPLICABLE STATUTE

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.

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. Consequently, [the requesting individual] may not appear, practice or render services for compensation in any matter before DOT during the two year post-employment period.

While these restrictions do not bar his being retained by the engineering firm, they do limit the activities in which he may engage. For example, they would prevent him from having any contact with the DOT engineer-in-charge or with any other DOT employee with regard to a highway project on which the firm had been retained. Even "casual" contact would result in a prohibited appearance before his former agency.

The more difficult question is whether [the requesting individual] may assist the consulting firm in recruiting and hiring inspectors. While this activity, by itself, would not cause [the requesting individual] to make a prohibited appearance before DOT, there is a question as to whether he would be rendering services for compensation in a matter before his former agency in violation of Public Officers Law §73(8)(a).

In Advisory Opinion No. 94-4, the Commission considered former employees of the Department of Taxation and Finance ("Department") who accepted employment with a private entity with which the Department had contracted to perform functions in the processing of personal income tax returns. It concluded that the contract between the Department and the contractor was a "matter" before the Department. Because the former State employees would be performing functions that would enable the contractor to fulfill its contract requirements, and because the work to be performed by the former State employees would involve the processing of State personal income tax returns--which are matters before the Department--the Commission found that the former employees would receive compensation for services on behalf of a corporation in relation to a matter before their former agency.(1)

By recruiting and hiring inspectors, [the requesting individual] would render services that would permit individuals other than himself to perform the services required by the firm's contracts with DOT. His services would be only indirectly related to the contracts. Thus, in the instant case, unlike the circumstances described in Advisory Opinion No. 94-4, [the requesting individual] will not be involved in rendering direct services under a contract with his former agency. Rather, the inspectors hired by the engineering firm will perform the contractual work.(2) Since [the requesting individual] is removed from the firm's performance under the contracts, neither his work nor his work product will be directly reviewed by DOT. Thus, there is no opportunity for the agency to provide preferential treatment to him. Furthermore, he will not get paid from the proceeds of the contract. Unlike the situation presented in Advisory Opinion No. 94-4, [the requesting individual], by recruiting the inspectors who will perform the actual work, cannot be said to be rendering services for compensation in a matter before his former agency.

CONCLUSION

The Commission concludes that the post-employment restrictions of Public Officers Law §73(8)(a) do not prohibit [the requesting individual] from recruiting inspectors as described herein. He may not, however, engage in other activities that may cause him to appear before DOT or render services on the contract between his employer and DOT.

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

Angelo A. Costanza,
Robert E. Eggenschiller, Members

Dated: July 18, 1995


Endnotes

1. See Advisory Opinion No. 94-4.

2. Therefore, following Advisory Opinion No. 94-4, [the requesting individual] could not do the actual inspections until two years have expired from his leaving State service. In addition, he may not recruit inspectors from DOT, as they would also be prohibited from performing the inspections.



URL: http://www.nysl.nysed.gov/edocs/ethics/95-22.htm