New York State
Ethics Commission


Advisory Opinion No. 95-41: Application of the lifetime bar provision contained in §73(8)(a)(ii) of the Public Officers Law to a former Assistant Attorney General who seeks to represent a party in a civil proceeding that is related to a criminal matter in which the attorney held a supervisory role.

INTRODUCTION

The following advisory opinion is issued in response to an inquiry from [ ], a former Assistant Attorney General with the Department of Law, concerning the application of Public Officers Law §73(8)(a)(ii), the lifetime bar, to his continued representation of a defendant in a pending civil action. The attorney for the plaintiff in that action has complained that [the requesting individual]'s prior involvement in a related criminal matter while he was Chief of the Environmental Crimes Unit in the Attorney General's Office precludes his representation.

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 [the requesting individual]'s limited involvement in the criminal matter while he served in the Attorney General's Office was not such that he personally participated in and was directly concerned with the matter, or that he had it under his active consideration. Therefore, the lifetime bar does not preclude him from representing a party in the civil action.

BACKGROUND

[The requesting individual] is currently an attorney with the firm of [ ] which represents [ ], a defendant in a civil action brought by the City of [ ] in the United States District Court for the [ ] District of New York under the federal Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607.(1) The City alleges that [the defendant represented by the requesting individual] and the other defendants are liable for response costs it incurred since 1989 due to the release of hazardous substances at a site known as the [Site].

Certain individuals connected with this site were indicted in State court [previously] for criminal violations of the State's environmental laws. None was associated with or employed by [the defendant represented by the requesting individual]. Those indicted are also defendants in the current CERCLA action. The New York Attorney General's Office prosecuted the criminal cases.

[The requesting individual] was employed by the Attorney General's Office as Chief of the Environmental Crimes Unit from the [ ] to the end of [ ]. He was hired by then Attorney General Robert Abrams [ ] to prosecute violations of the Environmental Conservation Law. Prior to the time of his employment, criminal prosecutions under the Environmental Conservation Law were handled by attorneys whose primary duties involved civil litigation.

At the time of the criminal indictments in [ ], [the requesting individual] was stationed at the Attorney General's New York City Office. Although he occasionally visited the Attorney General's Albany and Buffalo offices and communicated with attorneys in those offices from time to time, he states that the primary focus of his activities concerned matters in the New York City metropolitan area.

Counsel for the City of [ ], has expressed his concern that [the requesting individual], in his capacity as Chief of the Environmental Crimes Unit, had been personally involved in the criminal matter. In letters addressed to [the requesting individual], dated [ ] and [ ], [the City's counsel] put him on notice that his continued representation of [the defendant he represents] in the civil action may be a violation of the lifetime bar contained in §73(8) of the Public Officers Law, and he threatened to file a complaint with the Commission. In a letter dated [ ], [the requesting individual] requested an advisory opinion of the Commission and so notified [the City's counsel]. In response, by letter dated [ ], [the City's counsel] advised [the requesting individual], through his attorney, that based on [the requesting individual]'s request for an opinion of the Commission, he would not be filing a formal complaint at that time. In his [date] letter, [the requesting individual] advised the Commission that he had retained counsel who would provide him with an opinion as to whether his continued representation of [the defendant he represents] is in compliance with the Canons of Professional Responsibility and that he would seek an opinion of his law firm's ethics committee as to whether he should withdraw from the case. [The requesting individual] represented that pending receipt of these opinions, he would not bill or receive any compensation from [the defendant he represents], but he would continue to represent it.

[The City's counsel], in his letters, states that he believes that [the requesting individual] may have been privy to confidential information that would provide him with an unfair advantage with regard not only to the plaintiff but also to the other defendants in the action. [The City's counsel] notes that the [ ] investigation of the [Site] not only resulted in the indictment of some of the defendants in the current civil action, but it also included other named defendants.

[The City's counsel] brought to [the requesting individual]'s attention a copy of a press release issued by former Attorney General Abrams, dated [ ], announcing the arrest of one of the indicted individuals. The press release indicates that the criminal case was handled by Assistant Attorneys General [A and B] under the supervision of [the requesting individual] and [C], Assistant Attorney General in Charge of the Environmental Protection Bureau.

[The requesting individual] has informed the Commission that [Assistant Attorney Generals A and B] were stationed in the Environmental Protection Bureau's Albany office, that they primarily handled civil litigation under the supervision of others, and that they were not members of the Environmental Crimes Unit. He states that, to the best of his knowledge, his involvement in the criminal prosecutions was limited to review of the [date] indictments for form. He states that he suggested certain language changes to the indictments, which were adopted. [The requesting individual] does not recall that he had any substantive input into the decisions to initiate the investigation or to seek the indictments.

On [date], [the requesting individual] wrote a letter to Magistrate [ ], who is overseeing the CERCLA action, with a copy to the Commission, informing Judge [ ] that he had asked the Attorney General's Office to search its files. He informed the Court that an Assistant Attorney General who had reviewed the documents that could be located indicated that they did not reflect any involvement on [the requesting individual]'s part.

In a subsequent letter to the Commission, dated [ ], [the requesting individual] provided further information concerning his investigation into his involvement in the criminal prosecutions. He states that [Assistant Attorney General B], whose participation in the criminal prosecutions was limited to the presentation of a single witness before the grand jury, said that he had no recollection of [the requesting individual]'s involvement in the [site] investigation. [The requesting individual] also contacted the Department of Law investigator who had accompanied Department of Environmental Conservation investigators during the execution of a search warrant on the [site] property, and he, too, said that he had no recollection of [the requesting individual]'s involvement in the case. In addition, [the requesting individual] contacted the Attorney General's Director of Investigations, who supervised the investigators assigned to the Environmental Protection Bureau during that time. Like the others, he had no recollection of [the requesting individual]'s involvement in the [site] investigation.

On [date], the Department of Environmental Conservation, responding to a subpoena duces tecum, provided all non-exempt documents in its possession pertaining to the [site] to counsel for the parties in the CERCLA litigation. [The requesting individual] states that his paralegal reviewed the files, and they disclosed no indication of his involvement in the [site] investigation. [The requesting individual] has also generated a list of documents reflecting communications to and from the Attorney General's Office concerning the criminal prosecution. In none of the letters is [the requesting individual] listed as either the addressee, the writer or the recipient of a copy.

Finally, in his [date] letter, [the requesting individual] states that both his counsel and his firm's ethics committee have indicated that it is their opinion that Public Officers Law §73(8) does not bar his participation in the CERCLA litigation, and that, therefore, he intends to bill [the defendant he represents] for professional services rendered through [date].

The Commission has conducted its own inquiry into [the requesting individual]'s participation in the criminal prosecutions. It has learned that [the requesting individual] functioned as a Section Chief and supervised all criminal environmental cases brought by the Attorney General's Office during his period of public service. Customarily, he approved decisions as to whether to present environmental cases to grand juries, to issue indictments, and to settle. He reported to [Assistant Attorney General C], head of the Environmental Protection Bureau. Neither [Assistant Attorney General A], the lead prosecutor in the [site] case, nor [Assistant Attorney General B] was in [the requesting individual]'s unit. Rather, they were located in the Environmental Protection Bureau and also reported to [Assistant Attorney General C].

With respect to the [site] investigation, the Commission understands that [Assistant Attorney General C] asked [Assistant Attorney General A] to review the investigation, which had been conducted by the Department of Environmental Conservation, and make a recommendation as to whether a criminal prosecution was warranted. [Assistant Attorney General A]'s response was that it was a good case for prosecution. According to [Assistant Attorney General A], to the best of his knowledge, [the requesting individual] was consulted prior to the empaneling of the grand jury and was asked to review the issuance of the indictments. [Assistant Attorney General A]'s contact with [the requesting individual] was brief, as [the requesting individual] did not get deeply involved with the substantive details of the case.

Following the indictment and the arrest of several individuals, the defendants filed omnibus motions. [Assistant Attorney General A] believes that [the requesting individual] did not review the papers submitted by the Attorney General's Office in response. Both [Assistant Attorney General A] and [the requesting individual] left the Attorney General's Office prior to the resolution of the criminal cases.

APPLICABLE STATUTE

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.

DISCUSSION

For the Commission to determine whether the lifetime bar prohibits [the requesting individual] from representing [the defendant represented by him] in the pending civil action, two issues must be addressed: (1) whether [the requesting individual]'s activities while in State service were such that he personally participated in and was directly concerned with, or actively considered, the criminal prosecutions, and, if they were, (2) whether the criminal action is the same "case, proceeding, application or transaction" as the pending civil action. Since the Commission finds that [the requesting individual]'s participation was not such as to trigger the lifetime bar, it need not consider the second issue.

In Advisory Opinion No. 93-13, the Commission held that decisive to a finding of whether a former employee personally participated in and was directly concerned with or actively considered a transaction is whether the former employee had some official State role in effecting the outcome of the transaction. In that case, the Commission held that while the employee "was certainly interested in the outcome," his interest did not rise to the level of direct concern and personal participation or active consideration necessary to invoke the lifetime bar because his role "was not one of an active participant or decision maker."

In Advisory Opinion No. 95-7, the Commission held that a former employee could render services with respect to legislation or regulations concerning the merger of two agencies notwithstanding the individual's having attended a forum while in State service where the merger was discussed, and, at his agency head's direction, having cast a vote in support of a report advocating the merger. In concluding that his activities did not constitute his "direct concern and personal participation" or "active consideration" of the merger suggestion, the Commission noted that the individual had not reviewed any legislative proposal addressing the merger, the agency head whom he represented was one of approximately 37 individuals drawn from the private and public sectors participating in the forum, the individual did not recollect ever having discussed the merger at any meetings at the forum, and that the vote he cast was on a roll call where the report received overwhelming approval.

In Advisory Opinion No. 95-16, a former State agency attorney had been asked by another agency attorney to sit in on several negotiating sessions in a particular case due to her awareness of some relevant issues because of her participation in a previous related but separate case. She did not comment or file remarks on any issue in the pending case, nor did she have any input into her agency's position. To the best of her recollection, her involvement was limited to making several suggestions to those handling the pending case. The Commission concluded that her presence at portions of two or three sessions, which were part of year-long negotiations, and her suggestions to agency staff did not constitute her personal participation in the pending case.

Turning to the instant matter, it appears that, in examining [the requesting individual]'s degree of activity in the criminal prosecutions, it is hard to come to a definitive conclusion as to what actually happened. This, in part, is due to the passage of almost a decade since they were brought and the fading of memories. However, certain facts are clear. The investigation of the [site] was conducted by the Department of Environmental Conservation, not the Attorney General's Office. Thus, [the requesting individual] was not involved at all in the investigation. This has been confirmed by investigators in the Attorney General's Office who assisted the Department. When the file was turned over to the Attorney General's Office to evaluate the possibility of bringing a criminal prosecution, it was assigned to and reviewed by an attorney other than [the requesting individual]. It was that attorney who recommended that the office proceed. At this point, matters become somewhat less clear.

The review of the files that were examined do not reveal any involvement by [the requesting individual]. However, [the requesting individual], himself, believes that he reviewed the indictments for form and made some language changes. While [the requesting individual] states that he did not participate in the decision to initiate the investigation or seek the indictments, the Commission's independent inquiry indicates that there may have been some additional involvement on his part. He may have been consulted prior to the empaneling of the grand jury, and he may have considered the issuance of the indictments. Even if he was so involved, however, discussions with him clearly were brief, and he did not become immersed in substantive details.

Under these circumstances, the Commission concludes, based upon the principles established by its prior opinions, discussed above, that [the requesting individual]'s activities were not such as to constitute his personal participation in the criminal prosecutions. Whatever the specific facts may have been, there is no question but that his involvement was, at most, tangential. In this respect, he is similar to the employees who were the subjects of Advisory Opinions Nos. 95-7 and 95-16. In both of those instances, the Commission found, as noted above, that the activity of the employees did not constitute personal participation. It reaches the same conclusion here.

That leaves only the question of whether the criminal prosecutions were under his active consideration by virtue of employees who were subordinate to him having worked on the matter. The Commission has imputed the work of an agency's counsel to the Commissioner of the agency. See Advisory Opinion No. 92-20. However, in that opinion, the Commission said that it "was aware of the hazard of imputing all actions of staff to the supervisor for purposes of determining whether there has been a violation of the ethics law."

In the instant matter, the assistant attorneys general who directly handled the criminal prosecutions were not in the unit headed by [the requesting individual], and they did not report to him. While the Commission has yet to opine on the breadth of imputing the activities of subordinates to a supervisor at a level below an agency head, it is clear that it will not so impute activities where the active employees are not in with the supervisor's unit. Thus, [the requesting individual] did not have the criminal prosecutions under his active consideration.

CONCLUSION

The Commission concludes that [the requesting individual]'s limited involvement in the criminal matter while he served in the Attorney General's Office was not such that he personally participated in and was directly concerned with the matter, or that he had it under his active consideration. Therefore, the lifetime bar does not preclude him from representing a party in the civil action.(2)

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.

Concur:

Joseph M. Bress, Chair

Angelo A. Costanza,
Robert E. Eggenschiller, Members

Dated: December 19, 1995


Endnotes

1. The title of the action is [ ].

2. This opinion does not address the issue of whether [the requesting individual]'s representation is permitted by the Code of Professional Responsibility, applicable to attorneys admitted to practice in New York.



URL: http://www.nysl.nysed.gov/edocs/ethics/95-41.htm