New York State
Ethics Commission


Advisory Opinion No. 95-26: Application of the lifetime bar provision of Public Officers Law §73(8)(b).

INTRODUCTION

The following advisory opinion is issued in response to a request submitted by [ ], a former employee of the New York State Office of Mental Health ("OMH") concerning the application of the lifetime bar provision of Public Officers Law §73(8)(b) to her activities as director of [the private facility] [at site A].

Pursuant to its authority under Executive Law §94(15), the New York State Ethics Commission ("Commission") concludes that [the requesting individual] may perform the duties of director at [the private facility] without violating §73(8)(b) providing she abides by the restrictions contained in this opinion.

BACKGROUND

[The requesting individual]'s Employment with OMH.

[The requesting individual] was employed by [ ], a facility of OMH, in [ ] New York prior to [ ] 1992, when she left State service.(1) She had been designated by OMH as serving in a policymaking position.

In a letter to the Commission, [the requesting individual] described her work during her employment with OMH. She was employed with the [ ] regional office of the agency from November 1983 to August 1992. During her tenure she functioned as a children and families specialist, and was responsible for providing technical assistance and support to both public and private mental health programs for children and families in 20 counties across [ ] New York. At any point in time, she might be dealing with as many as 30 different service providers, representing more than 40 programs. One was [the private facility]'s residential treatment facility ("RTF") program in [site A].

[The requesting individual]' involvement with [the private facility] as an OMH employee dated back to 1983 or 1984, when the [ ] regional office identified a level of care that was not being provided in its geographical region. [The requesting individual] and her then supervisor at the [ ] regional office, [ ], approached several agencies, including [the private facility], to see if they would be interested in providing that level of care. [The private facility], which enjoyed a good reputation with OMH's [another] regional office, expressed an interest.

[The requesting individual] stated that, as part of her duties for the [ ] regional office, she provided technical assistance to [the private facility] in preparing a certificate of need ("CON") application, answering its questions, and she served as a liaison with OMH's central administration. The CON application is divided into two parts, the first of which involves the obtaining of OMH approval for construction of the RTF. Part one is the programmatic piece, including the staffing proposal and functional program, which is subject to the approval of OMH's Bureau of Inspection and Certification. [The requesting individual] was actively engaged in this aspect of the application, and she acknowledged that, as OMH's representative in the regional office, her opinion on the application would be sought, particularly with regard to the programmatic part. Phase two concerns fiscal issues, with which, [the requesting individual] stated, she had little to do. However, she also stated that she would have reviewed all of [the private facility]'s grant application, with ultimate approval coming from OMH in Albany.

OMH officials have described [the requesting individual]' duties, in terms of the [ ] RTF, as a liaison between [the private facility] and Albany OMH on programmatic and budgetary issues. [The requesting individual] would answer [the private facility]'s questions and otherwise assist in the approval process. As part of [the requesting individual]' duties for the [ ] regional office, she would participate in most meetings between [the private facility] and OMH. A sampling of documents from the [ ] regional office from 1989 through 1992 shows that [the requesting individual] was either the addressee or a recipient of a copy of almost all correspondence between [the private facility] and OMH. All of this involved the largest recent capital project to be undertaken in the [ ] New York region.

[The requesting individual]'s Employment with [the private facility]

In her correspondence with the Commission, [the requesting individual] affirmed that she commenced employment with [the private facility] in September 1992 with the understanding that, although she would initially be responsible for [the private facility]'s [site B] RTF,(2) she would eventually become responsible for the [site A] RTF. She also stated that it was understood that she would not appear or practice before OMH or receive compensation in relation to any matter before the agency. [The requesting individual] subsequently became director of the [site A] facility. She stated that her duties relate solely to the day-to-day operation of the facility, and that liaison and negotiation with OMH concerning policy and fiscal issues are handled directly by the administrative staff at [the private facility]'s [site B] campus. [The requesting individual] asserts that any contact between OMH and herself has been client and program related, and has included discussion of admissions, waiting lists, and discharge planning.

At this juncture, [the requesting individual] seeks the Commission's opinion as to the activities in which she may engage as director of the [site A] RTF without violating the lifetime bar.

APPLICABLE STATUTE

The lifetime bar provision of Public Officers Law §73(8)(b) provides:

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.

DISCUSSION

The lifetime bar, part of 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. It acts as a permanent prohibition to appearances and the rendition of services pertaining to any case, application, proceeding, or transaction in which an officer or employee was directly concerned and personally participated or which was under his or her active consideration while in State service.

In Advisory Opinion No. 91-2, the Commission, in interpreting this provision, stated that, "[i]t is permissible for former employees to draw on their information concerning 'old' transactions if the information bears a relationship to current transactions." In Advisory Opinion No. 91-18, the Commission reiterated its position that Public Officers Law §73(8) does not preclude a former State officer or employee from appearing, practicing, communicating, or rendering services for compensation on new and separate matters or transactions, notwithstanding the fact that the State employee may have been directly concerned or personally participated in a similar or related transaction while he or she was in State service.

It is clear in the instant matter that [the requesting individual] should not face a total prohibition on working for [the private facility] at the [site A] facility. However, there are certain matters from which [the requesting individual] would be precluded from rendering services for [the private facility] because of her involvement with these matters while she was employed by OMH. Activities from which [the requesting individual] is precluded are the following:

On the other hand, [the requesting individual] may work on matters that have no nexus with the budgetary and programmatic approvals that were part of her responsibilities while employed by OMH. For example, [the requesting individual] may engage in activities related to the processing of new client referrals through the Regional Pre-admission Certification Committee, as these activities relate to new and potential clients of [the private facility]. This includes referrals, prioritization of referrals and disability determination recertification. [The requesting individual] may also engage in activities which seek clarification of, or changes to existing regulation or policy, provided she was not directly concerned with or personally participated in or actively considered the regulation or policy while she was employed by OMH.

Other activities in which [the requesting individual] may engage, as activities involving new transactions, are the following:

CONCLUSION

The Commission concludes that [the requesting individual] may perform the duties of Director of [the private facility]'s [site A] facility without violating Public Officers Law §73(8)(b) provided she complies with the restrictions set forth in this opinion. For any issue not addressed herein, [the requesting individual] should request the Commission's opinion as to whether her activities comport with the lifetime bar of Public Officers Law §73(8)(b).

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. As more than two years have expired since [the requesting individual] left State service, the Commission need not discuss the application of the two year bar provision of Public Officers Law §73(8)(a) to her current circumstances.

2. While employed with [a state agency], [the requesting individual] had no official duties for the [site B] RTF, which was under the jurisdiction of a different regional office from the one to which [the requesting individual] was assigned.



URL: http://www.nysl.nysed.gov/edocs/ethics/95-26.htm