New York State
Ethics Commission


Advisory Opinion No. 96-16: Application of the government-to-government exception of Public Officers Law §73(8)(e) to employees of the New England Interstate Water Pollution Control Commission.

INTRODUCTION

The following advisory opinion is issued in response to a request submitted by Ann Hill DeBarbieri ("DeBarbieri"), Associate Counsel with the New York State Department of Environmental Conservation ("DEC"). She asks whether the "government-to-government exception" contained in Public Officers Law §73(8)(e) would permit a DEC employee who leaves State service to appear before the agency within two years of his departure if he becomes an employee of the New England Interstate Water Pollution Control Commission ("NEIWPCC"), an organization established by an interstate compact.

Pursuant to its authority under Executive Law §94(15), the New York State Ethics Commission ("Commission") hereby renders its opinion that §73(8)(e) is applicable to employees of NEIWPCC. Accordingly, the post-employment restrictions of Public Officers Law §73(8)(a), including the two year bar, would not apply to a former DEC employee who is carrying out official duties as an employee of NEIWPCC. The employee could appear before DEC.

BACKGROUND

NEIWPCC is an interstate commission established by a compact entered into by the states of New York, Massachusetts, Maine, Vermont, New Hampshire, Connecticut and Rhode Island "for the purpose of controlling and abating the pollution of waterways common to New York and the New England States."(1)

The compact describes NEIWPCC as "a body corporate and politic, having the powers, duties and jurisdiction herein enumerated and such other and additional powers as shall be conferred upon it by the act or acts of a signatory state concurred in by the others." It has five Commissioners from each signatory state who are chosen in the manner provided by the laws of each of the respective states.(2) For each state, there must be a member representing the State Health Department, one representing the state water pollution control board (if existent), and other members who are representatives of municipal interests, industrial interests and an agency acting for fisheries or conservation. A chairman and a vice chairman are elected annually by the Commission, and an annual report is submitted to the Governor and Legislature of each signatory state.

The Commission meets twice yearly. Commissioners receive no compensation, but they are reimbursed for necessary expenses. The Commission is prohibited from incurring any obligations for salaries, office, administration, traveling or other expenses prior to the allotment of funds by the signatory states adequate to meet the same. Each state is also given the right to examine and audit of the accounts of the Commission.

The five Commissioners representing the State of New York are the DEC Commissioner, an officer of DEC and such persons as the Governor shall determine will serve the best interests of the State.(3) The DEC Commissioner is required to review estimates submitted by NEIWPCC to administer, manage and support the Commission during the ensuing fiscal year and submit suitable items of estimated expenditure in the DEC budget.(4)

DeBarbieri provided the Commission with a memorandum prepared by the Executive Director of NEIWPCC which describes the legal status of the organization. He advises that NEIWPCC is treated by the United States Environmental Protection Agency "as a governmental entity as far as [its] funding agreements and regulatory requirements are concerned":

(1) NEIWPCC is a federally recognized instrumentality of the states and receives its base funding under §106 of the Clean Water Act.

(2) NEIWPCC is subject to 40 CFR Part 31, which provides for Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments.

(3) NEIWPCC must follow guidance set forth in and is audited under the Office of Management and Budget's Circular A-128, which applies to state and local governments receiving federal aid.

The Compact sets forth the powers of NEIWPCC. It mandates that each of the signatory states establish standards of water quality for various classifications of use and prepare a classification of its interstate waterways according to present and proposed highest use. Such classifications must be submitted to NEIWPCC for approval. The states must then work to meet the standards established by NEIWPCC through their appropriate health departments and water pollution control agencies and through programs of treatment of sewage and industrial waste. NEIWPCC is given the power to modify classifications and standards as may be required by changed conditions.

DeBarbieri's request concerns a DEC employee who is anticipating leaving the agency and accepting a position with NEIWPCC. She asks whether he would be able to appear before DEC upon his departure. She states that "it is critical" that the government-to-government exception to the two year bar allow the individual in question to appear before DEC within the two year period.

This request is similar to one recently received by the Commission which asked whether an employee of the New York State Association of Counties ("NYSAC") is covered by the government-to-government exception. The two requests are both being considered at today's meeting of the Commission, and companion opinions are being issued. For an analysis of the applicable statutes and relevant Commission opinions, the reader is referred to Advisory Opinion No. 96-15.

DISCUSSION

In the companion opinion, the Commission held that employees of NYSAC are not covered by the government-to-government exception because NYSAC is not authorized by the Legislature to exercise sovereign power. NEIWPCC, in contrast, has clearly been granted such authority. It imposes classifications of interstate waterways upon the signatory states and mandates that the states work to meet the standards required by such classifications. By entering into the compact, New York, through the Legislature, has bound itself to meet these requirements.

Furthermore, unlike NYSAC, NEIWPCC is subject to the regulatory authority of a government. It must comply with certain federal regulations (40 CFR Part 31) and is subject to audit by the federal government's Office of Management and Budget. It, thus, appears to be, in important ways, treated as a government agency.

These powers and responsibilities demonstrate that NEIWPCC is similar to the Regional Planning Board described in Advisory Opinion No. 94-8, discussed in the companion opinion. There, a board member was equated to a government employee for purposes of the government-to-government exception. Employees of NEIWPCC should be treated similarly.

CONCLUSION

The Commission concludes that Public Officers Law §73(8)(e), the government-to-government exception, is applicable to employees of NEIWPCC. Accordingly, a former DEC employee who works as an employee of NEIWPCC would not be prohibited from appearing before DEC within two years of his or her leaving State service.

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:

Evans V. Brewster
Angelo A. Costanza,
Robert E. Eggenschiller,
Donald A. Odell, Members

Dated: July 18, 1996


Endnotes

1. Authority for the States to enter into the interstate compact was granted by an act of Congress (Public Law 292, approved July 31, 1947). New York first joined the compact pursuant to Chapter 764, Laws of 1949.

2. New York's representatives are designated in accordance with Article 21, title 1 of the Environmental Conservation Law.

3. Environmental Conservation Law §21-0103.

4. Environmental Conservation Law §21-0105.



URL: http://www.nysl.nysed.gov/edocs/ethics/96-16.htm