|Advisory Opinion No. 95-32:||Application of the lifetime bar provision contained in §73(8)(a) of the Public Officers Law to an employee who seeks to lobby on matters related to school aid and the annual State budget.|
The following advisory opinion is issued in response to an inquiry from , an employee of the State University of New York ("SUNY"), concerning the application of Public Officers Law §73(8)(a)(ii), the lifetime bar, to his prospective post-employment activities. Specifically, [the requesting individual] has asked the Commission to determine whether, as a lobbyist representing a statewide educational organization, he would be prohibited by the lifetime bar from working on matters dealing with school aid and the annual State budget.
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 since each year's State budget constitutes a separate and distinct transaction, [the requesting individual] may lobby on any budget, as defined herein, on which he did not work while in State service. With regard to school aid, he may work on all aspects excepting the specific programs with respect to which he was directly concerned and in which he personally participated while in State service.
[The requesting individual] currently serves as [an employee] for SUNY. On May 31, 1995 the Commission issued, at [the requesting individual]'s request, Advisory Opinion No. 95-19, in which it determined that if [the requesting individual] were to leave State service, his former agencies, for purposes of the two year bar, would include the Higher Education Services Corporation ("HESC"), SUNY and the Executive Chamber. In addressing lifetime bar issues presented by [the requesting individual], the Commission advised him of the applicable general principles, but it stated that determinations are made on a case-by-case basis. [The requesting individual] had not, at that time, presented any specific matters to the Commission.
Upon receiving that opinion, [the requesting individual] wrote to the Commission and requested an informal opinion as to how the lifetime bar would apply to him in the context of school aid and the annual State budget. On August 15, 1995, the Commission issued its informal opinion. [The requesting individual] now requests a formal advisory opinion.
Many of the facts applicable to this opinion are set forth in Advisory Opinion No. 95-19. It is sufficient for purposes of the questions presented here to note that from 1973 to 1983 [the requesting individual] served as a member of the staff of the New York State Assembly Ways and Means Committee, dealing with education issues with a particular emphasis on school aid. In 1983, he joined the staff of the Executive Chamber . In this capacity, [the requesting individual] dealt with a number of legislative and governmental issues concerning education. In 1988, he [became an employee] of HESC, where he served until August 1994, when he assumed his present position with SUNY. During the last two and one-half years of his period of service at HESC, [the requesting individual] continued to provide assistance to the Governor on issues related to higher education as well as elementary and secondary education.
[The requesting individual]'s role in the Executive Chamber was that of what he describes as a "program person". As such, he was responsible for drafting speeches, writing press releases, considering candidates for gubernatorial appointments, and creating and developing educational programs of interest to the Governor. [The requesting individual] has identified four such programs on which he worked: (1) the Liberty Scholarships program; (2) the Excellence in Teaching program; (3) the Excelsior Schools program; and (4) the 21st Century Schools program.
[The requesting individual] states that after 1988 he did not, as a program person, work on school aid, which was handled exclusively on behalf of the Governor by the Secretary to the Governor and the Education Unit in the Division of the Budget. It was the Secretary and this unit that met with staff of the State Education Department and negotiated with staff of the fiscal committees of the Assembly and Senate. [The requesting individual] states that he was not involved in the drafting or negotiation of school aid bills, nor did he participate in any internal meetings or those held with the Education Department or either of the legislature's fiscal committees.
[The requesting individual] anticipates leaving State service to work as a lobbyist for a statewide educational organization. In this capacity, he would work on, among other things, matters dealing with the annual State budget and school aid. [The requesting individual] has asked the Commission to determine whether he is prohibited by the lifetime bar from dealing with these matters.
Public Officers Law §73(8)(a)(ii) states:
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.
Under this provision, a former employee is prohibited from appearing, practicing, communicating or otherwise rendering services before any State agency, or receiving compensation for such services rendered anywhere, in relation to any case, proceeding, application or transaction involving a matter in which he or she was directly concerned and personally participated or which was under his or her active consideration while in State service. The critical question when examining the lifetime bar is whether a case, proceeding, application or transaction on which a former State employee proposes to work is the same as one on which he or she worked while in State service. The determination of whether the lifetime bar precludes an activity is one which must be made on a case-by-case basis ( Advisory Opinion No. 90-22).
In order for the Commission to determine whether the lifetime bar prohibits [the requesting individual], as a lobbyist for a statewide educational organization, from working on the State's annual budget and matters dealing with school aid, the Commission must determine whether [the requesting individual] seeks to work on the same "case, proceeding, application or transaction" on which he worked while in State service.
In its often cited Advisory Opinion No. 92-20, the Commission 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. In reaching this conclusion, the Commission considered rulings by the Office of Government Ethics ("OGE"), the Commission's counterpart in the federal government, which renders opinions on the provisions of federal statutes and regulations governing post-employment restrictions. OGE has concluded "that legislation does constitute 'a particular matter' for purposes of [18 USC] §207(c)" (the federal post-employment restrictions on former executive and legislative branch officers, employees and elected officials).(1) In weighing whether legislation constitutes the "same particular matter" on which an individual participated while in federal service, OGE referred to 5 C.F.R. §737.5(c)(4), which explains the concept as follows:
The same particular matter may continue in another form or in part. In determining whether two particular matters are the same, the agency should consider the extent to which the matters involve the same basic facts, related issues, the same or related parties, time elapsed, the same confidential information, and the continuing existence of an important Federal interest. (Emphasis in original.)(2)
In Advisory Opinion No. 92-20, the Commission considered bills involving a single topic, issue and program area. From year to year, this narrow treatment of a specific issue necessarily encompassed common basic facts, issues and parties interested in its outcome. This differs significantly from the annual State budget.
The development of each year's budget is a lengthy, multi-layered process culminating in the passage of legislation. The myriad of variables which must be considered annually -- revenue estimates, fiscal climate, changes in federal aid and revenue-sharing, new mandates -- coupled with an ever-changing number of persons interested in and affected by the budget's outcome render it significantly different from work on any single piece of legislation. The Commission, therefore, concludes that, although part of the legislative process, each budget should be considered a separate and distinct transaction for purposes of the lifetime bar. By the budget, the Commission means the money to be raised and expended by the State during the fiscal year and the appropriation bills authorizing expenditures. It does not include as part of the budget, for purposes of this analysis, bills passed at the same time as appropriation bills or even specific sections of budget bills that create new programs, substantially amend existing programs or change substantive State law.
This result is consistent with prior opinions in which the Commission has held that the consideration and deliberation of multiple variables within a particular type of transaction or proceeding renders each transaction or proceeding as new, different and distinctive. In Advisory Opinion No. 95-7, for example, the Commission held that in successive utility rate cases before the Pubic Service Commission involving the same utility, each case should be considered a different proceeding for purposes of the lifetime bar. The Commission noted that the Public Service Commission, in considering whether to change rates for a specified period, must re-estimate every component of a utility's revenue requirements for each new period.
In Advisory Opinion No. 95-15, the Commission similarly held that the preparation of each new "cost trending index" used by the Office of Real Property Services to trend historical cost information to current assessment year cost levels constitutes a new and separate transaction for purposes of the lifetime bar, as each such index "requires separate index research and preparation on the part of the supplier." The Commission specifically stated that these biannual submissions "do not modify existing indices and are not dependent on any previous index; rather, they are completely recalculated."(3) Similarly, in the context of the Medicaid rate-setting process, the Commission, in an informal opinion, found while the process consists of a relatively constant methodology by which rates are annually established, multiple variables (e.g. a facility's volume of clients, case mix, new programs, staff and services) differ from year to year. The Commission concluded that each setting of a Medicaid rate represents a new and separate transaction each year.
Based on the foregoing, the Commission concludes that each annual State budget, as defined above, constitutes a new and separate transaction for purposes of the lifetime bar. Thus, [the requesting individual] may participate on behalf of an educational organization in the formulation of the State's annual budget as long as he did not work on that budget while in State service.
The Commission next examines [the requesting individual]'s ability to lobby on each year's aid to schools. School aid is actually determined by a variety of statutes through which the State sets the relative amount of financial assistance each school district will receive annually to support its educational programs and operations. It is funded through that part of each year's budget known as Aid to Localities, and constitutes a significant part of each year's budget.(4) In considering the total amount to be available for school aid, each year's calculation is, as with other parts of the budget, new. Property values, personal income, student population, and State lottery revenues are among the variables considered annually when determining the amount to be spent. Federal policy and federal aid to education are also considerations subject to annual change.
However, the so-called school aid formula is more than just the annual appropriations. As noted above, it includes a variety of substantive laws defining the distribution of all money among the local school districts and the programs for which the districts can expend the money. Changes in this aspect of the school aid formula require the amendment of existing statutes, usually found in the education law. These statutes represent State policy, rather than being related solely to the amount to be spent for a specific program. They are more like the bills described in Advisory Opinion No. 92-20, discussed above. Work on this aspect of the school aid formula would result in a lifetime barred transaction, unlike work on the appropriations. Admittedly, the final school aid allocation for any year is based on both the amounts made available and their allocation pursuant to substantive law. However, for the purposes of the revolving door statute, the Commission divides them -- bills adding, subtracting or adjusting the money to be made available to the districts are budget related, with each budget being a separate transaction, while work on substantive bills subjects an employee to the lifetime bar.
Applying these concepts to [the requesting individual], the Commission determines that he is not prohibited by the lifetime bar from lobbying on school aid, a subject with which he has had no involvement since at least 1988. He is, however, prohibited from lobbying on matters related to any education program on which he worked while in State service, which he describes as the Liberty Scholarships program, the Excellence in Teaching program, the Excelsior Schools program, and the 21st Century Schools program. To the extent he may have worked on school aid prior to 1988, the Commission notes that the extensive changes since that time make it today a different transaction.(5)
The Commission concludes that each year's State budget, as defined in this advisory opinion, constitutes a separate and distinct transaction from all other budgets, and that [the requesting individual] may lobby on any budget as long as he did not work on the same year's budget while in State service. With respect to school aid, he may lobby on all aspects except the specific education programs with respect to which he was directly concerned and in which he personally participated while in State service. Included in this bar are the Liberty Scholarships program, the Excellence in Teaching program, the Excelsior Schools program, and the 21st Century Schools program.
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.
Joseph M. Bress, Chair
Angelo A. Costanza,
Robert E. Eggenschiller,
Donald A. Odell, Members
Dated: November 20, 1995
1. See OGE informal opinion 81x1.
2. See OGE informal opinion 84x16.
3. Advisory Opinion No. 95-15.
4. In fiscal year 1995-96, school aid totalled $9.5 billion, which
was 22 percent of the State's annual budget, or approximately 35 percent of all monies dedicated
to local programs.
5. As noted in Advisory Opinion No.
95-19, [the requesting individual] would be subject to the two year bar upon leaving State
service. This would preclude him from appearing, practicing or rendering services for
compensation on any matters, including budget and school aid related matters, before his former
agencies, for the two years applicable to each of his former agencies.
4. In fiscal year 1995-96, school aid totalled $9.5 billion, which was 22 percent of the State's annual budget, or approximately 35 percent of all monies dedicated to local programs.
5. As noted in Advisory Opinion No. 95-19, [the requesting individual] would be subject to the two year bar upon leaving State service. This would preclude him from appearing, practicing or rendering services for compensation on any matters, including budget and school aid related matters, before his former agencies, for the two years applicable to each of his former agencies.