|Advisory Opinion No. 95-42:||Determination of "former agency" for purposes of application of the post-employment restrictions of Public Officers Law §73(8).|
The following advisory opinion is issued in response to an inquiry from [ ], former [employee] at the State University of New York ("SUNY") at [campus A], concerning the application of the post-employment restrictions of Public Officers Law §73(8)(a)(i) to her future work as a consultant offering conflict resolution and mediation training workshops to public and private colleges throughout the United States. [The requesting individual] asks whether offering her services to a SUNY college campus other than SUNY at [campus A] would constitute a violation of the two year bar.
Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by Executive Law §94(15), the Commission hereby renders its opinion that [the requesting individual], as a former employee of [campus A], may appear before or render services for compensation in a matter before any of the other colleges within SUNY.(1)
[The requesting individual] served as an employee of SUNY [campus A] for much of her professional life. From 1970 to 1976 she worked in the Department of [ ].(2) From 1976-78, she served as [job title]. She then attended [ ] law school and, upon her return to [campus A], became involved in the campus judicial system, dealing with student discipline problems. In 1985, [the requesting individual] started a dispute resolution program on campus, and served [ ] until June, 1995, when she retired from State service. She stated, in her letter, that during her career with SUNY [campus A], she never "provided services for any other campus; the performance of my job responsibilities was limited to the [campus A]."(3)
Upon her retirement, [the requesting individual] started a private consulting business, specializing in providing conflict resolution and mediation training workshops to public and private college campuses throughout the United States. [The requesting individual] states in her letter of request that while she knew that she "could not 'appear or practice' before [her] own agency--namely SUNY [campus A]--nor 'receive compensation for any services rendered . . . before such agency' . . . [she] never envisioned that another SUNY college would be considered the same state agency as [campus A]." [The requesting individual] argues that while each campus is part of the SUNY system, "each campus has been treated historically as a separate entity--financially, structurally, programmatically."
The State University of New York is the largest, centrally managed public university system in the United States. Founded in 1948 as a corporate entity within the State Education Department,(4) the original SUNY system consolidated 29 State-operated educational institutions.(5) Today, SUNY consists of 64 campuses throughout the State, offering a full range of academic, professional, and vocational programs.(6)
The SUNY system is governed by a 16-member Board of Trustees ("Board"), 15 of whom are appointed by the Governor with the advice and consent of the Senate.(7) The Board sets policy and appoints the University Chancellor, who serves as SUNY's chief executive officer. Among its duties, the Board formulates long-range plans for the SUNY system, encompassing the areas of new curricula and facilities as well as policy changes with respect to student enrollment.(8) In addition, the Board is responsible for the "overall central administration, supervision and coordination of state-operated institutions . . . . "(9) Among the powers and duties of the Board are the following:
Within the parameters and guidelines set by the Board of Trustees and the Chancellor, each college campus within the SUNY system maintains a great deal of independence and flexibility in administering its operations. For example, each college has its own president and administration, which operates the campus on a day to day basis. Once the SUNY system budget has been allocated, the administration at each campus is responsible for administering its own annual operating budget.(10) In addition, each campus may, with certain exceptions, enter into contracts for goods and services costing up to $50,000(11) and establish fees, charges and deposits for a variety of campus services and activities.(12) While the college president is appointed by the Board of Trustees, the individual colleges are authorized to conduct other personnel transactions. Each campus is a separate payroll entity, and faculty and staff earn tenure in employment only at the campus at which they are employed.
Public Officers Law §73(8)(a)(i) provides:
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.
Public Officers Law §73(8)(a)(i), part of what is 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. It contains a two year absolute bar on an employee's appearing, practicing or rendering services for compensation on any matter before his or her former agency.
Critical to the application of the two year bar, and central to the question raised by this request, is the determination of an individual's "former agency." As the Commission has demonstrated in previous opinions, this determination is not always readily apparent. The Commission has, for example, rendered "former agency" determinations in the context of consolidated agencies (Advisory Opinion No. 93-11), committees which function as agencies (Advisory Opinion No. 95-3) and agencies which operate within the administrative structure of other agencies (Advisory Opinion Nos. 91-13, 95-1). In the instant case, the Commission must determine whether the State University of New York, a large and complex system of institutions geographically dispersed throughout the State of New York, should be considered a single State agency for purposes of the two year bar.
As noted above, SUNY was established in 1948 to bring within one university system individual institutions of higher education. While it is governed by a Board of Trustees, the powers of which have been described, and a Chancellor, the individual colleges operate with significant independence. Each has its own president and administration, administers its own budget, can enter into certain contracts for goods and services, charge fees and conduct personnel transactions, all without central administration approval. Thus, in general, the governing powers of SUNY and its constituent colleges are divided. This means that an individual having a matter before one of SUNY's colleges may have to deal with the individual college or SUNY's central administration or both, depending upon the nature of the particular matter. This is critical to the analysis of the two year bar.
Given the independent nature of each of SUNY's colleges, the Commission believes that there is no reason to bar a former employee who served at one college from appearing before or rendering services in connection with a matter before another within two years of having left State service. Because of each college's independence, employees do not customarily move between them, and, thus, do not ordinarily become acquainted with employees at other colleges. In addition, the job functions of most employees do not require them to deal with individuals at any college other than the one at which they work. As noted above, each college generally functions on its own, subject to the guidance and oversight of the central administration.
Based on the foregoing, the Commission concludes that [the requesting individual], a former employee of [campus A], may appear before the other SUNY colleges within two years of her termination from State service.(13) [The requesting individual] has informed the Commission that her service contracts with SUNY colleges would not exceed $50,000. Accordingly, review of such contracts by SUNY central administration is not required. Therefore, the Commission need not decide whether, as a former employee of one of SUNY's colleges, she would be barred from appearing before SUNY's central administration. Should any of her contracts require review or approval by the central administration as well as by a college, the matter can be considered by the Commission at that time.
The Commission concludes that the two year bar of Public Officers Law §73(8) does not prohibit a former employee of one of the colleges within SUNY from appearing before or rendering services for compensation in a matter before any of the colleges within SUNY other than the one at which he or she served.
This opinion, until and unless amended or revoked, shall be binding on the Commission in any subsequent proceeding.
Joseph M. Bress, Chair
Angelo A. Costanza
Robert E. Eggenschiller, Members
Date: December 19, 1995
1. Since [the requesting individual] concedes that she may not appear before or render services on a matter before [campus A], there is no issue before the Commission as to that College.
2. Request letter dated November 9, 1995.
4. Chapters 695 and 698 of the laws of 1948.
5. State University of New York p. 554-55. Legislative Manual. Vol. 1988-89.
6. This includes community colleges, over which SUNY has oversight but which are local, rather than State, agencies.
7. Education Law §353. One member serves on the Board by virtue of his/her position as President of the Student Assembly.
8. Education Law §354.
9. Education Law §355.
10. Telephone conversation with , , Division of the Budget, December 11, 1995.
11. State University of New York Procedural Manual, SUNY Purchasing and Contracting Procedures - Item 300-310. Some contracts require Central Administration approval. These include contracts for telecommunication systems exceeding $20,000 and consulting services costing $50,000 or more which do not relate to construction, repair or rehabilitation of University facilities.
12. State University of New York Procedures Manual, Rentals and Other Charges - Item 050.
13. Since this opinion deals only with the two year bar, [the requesting individual] would also have to consider Public Officers Law §73(8)(a)(ii), the lifetime bar, which precludes former employees from appearing, practicing, communicating or otherwise rendering services in relation to a case, proceeding, application or transaction with respect to which they were directly concerned and in which they personally participated during the period of their State service or which was under their active consideration. [See for example, Advisory Opinion No. 95-16.] Should a lifetime bar issue arise as [the requesting individual] engages in her activities, she should contact the Commission.