|Advisory Opinion No. 96-20:||Application of the two year bar of Public Officers Law §73(8)(a) to a former commissioner of a State agency who served as a member of public benefit corporation and as chair of a council located within his agency.|
The following advisory opinion is issued in response to a request submitted by [ ], the former Commissioner of the New York State [agency], who asks whether: (1) the two year bar of Public Officers Law §73(8)(a)(i) precludes him from appearing before the [public benefit corporation], on which he served as a member by virtue of his having been Commissioner, and the State [ ] Council (Council), on which he served as Chairman by virtue of his having been Commissioner; and (2) whether a lobbyist for an organization whose interests relate to a State agency may serve on an advisory board to that agency where the board does not render decisions which affect the client of the lobbyist.
Pursuant to its authority under Executive Law §94(15), the New York State Ethics Commission ("Commission") hereby renders its opinion that [the requesting individual's] service as a member of [the public benefit corporation] and as Chairman of the Council by virtue of his having held the position of [the agency] Commissioner precludes his appearing, practicing or rendering services for compensation before these bodies within two years of his having left State service.
With regard to [the requesting individual's] final inquiry, the Commission cannot respond without additional information.
[The requesting individual] previously served as Commissioner of [the agency], having left that position on [date]. As Commissioner, he was the head of the agency, and he received the salary established in §169(c) of the Executive Law. This was a full-time position.
As Commissioner of [the agency], [the requesting individual], by virtue of [State law], sat as a member of [the public benefit corporation]; and, by virtue of [State law], sat as a member of and was Chairman of the Council.
The [ ] is a public benefit corporation authorized to issue notes and bonds for the purpose of [ ]; to finance [ ]; and to provide [ ].
Membership of [the public benefit corporation] consists of [the Commissioners of three agencies], and four members appointed by the Governor with the advice and consent of the Senate. [Cite.] [The public benefit corporation] members receive no compensation for their services. Each member, whether serving by virtue of holding office or by appointment, exercises identical powers.
The Council, at the time [the requesting individual] served as Commissioner, was established within [the agency], and consisted of the Commissioner and sixteen other members appointed by the Governor, including certain ex officio members and members from the public. [Cite.] Earlier this year, the Council was transferred to [another Department], and the [Department head] became its Chairman. [Cite.]
Members of the Council, other than "full time government" officials, are entitled to receive per diem compensation for the performance of official duties. Those who are members by virtue of holding a State or local office may designate a deputy or other official to exercise their powers except where a vote is taken on approval or amendment of the [ ] Code.
The Council is authorized to study the operation of this code, the State [ ] Code, and local laws and regulations to ascertain their effects upon [the costs] and the effectiveness of their provisions. In addition, the Council may recommend tests and approvals, or require the testing and approval of materials, devices and methods [ ] to ascertain their acceptability under the requirements of the [ ] Code. It also advises the Chairman -- formerly the Commissioner, now the [Department head] -- and makes recommendations concerning the code.
The Commissioner of [the agency], when he served as Chairman of the Council, was authorized to assign [agency] employees to the Council; provide for the testing and approval of materials, devices and methods of [ ]; and publish written interpretations of the [ ] code upon the written request of a [ ] applicant or an official responsible for the administration and enforcement of the code.
[The requesting individual] has asked the Commission, whether, within two years of his having left State service, he may appear before [the public benefit corporation] and the Council.
In addition, he has asked, in the abstract, an unrelated question -- may a lobbyist for an organization whose interests relate to a State agency serve on an advisory board to that agency if the board does not render decisions which affect the client of the lobbyist?
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.
This provision, 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 a former officer or employee's appearing, practicing or rendering services for compensation in relation to any matter before his or her former agency.
Public Officers Law §73(1)(i) defines "state officer and employee" to include:
(iii) officers and employees of state departments, boards, bureaus, divisions, commissions, councils or other state agencies other than officers of such boards, commissions or councils who receive no compensation or are compensated on a per diem basis; and
(iv) members or directors of public authorities. . . public benefit corporations and commissions at least one of whose members is appointed by the governor, who receive compensation other than on a per diem basis. . .
By virtue of these definitional provisions, appointed members of public benefit corporations, such as [the public benefit corporation], and councils who receive no compensation or only per diem compensation are not State officers. They are, therefore, not subject to the two year bar imposed by §73(8)(a)(i). The issue presented by [the requesting individual's] request is whether a full-time, paid State official who serves as a member of a public benefit corporation and as chairman of a council by virtue of his full time position is considered a State officer when acting in his capacity as such member or chairman.
At [the public benefit corporation], [the requesting individual] was a full member with all of the authority and responsibility of each of the other members, except, as a State official, he could designate [an employee of his agency] to represent him. [Cite.] Among [the public benefit corporation's] most important powers is its authority to issue bonds to finance projects it approves. While these bonds are not backed by the full faith and credit of the State, they are moral obligation bonds, the obligations of which can be legally assumed by the State. They, therefore, affect the financial position of the State and the State's ability to issue other debt. Consequently, [the public benefit corporation's] exercise of its bonding power is very closely related to the governance of the State.
With respect to the Council, [Cite] specifically authorizes those State and local officials who are members by virtue of holding a public office to designate a deputy or other officer to carry out their functions except when voting on the [ ] Code. As a result, there is not likely to be fully active personal participation by these government officials. However, [the requesting individual], as Chairman, had far more responsibilities than any of the other members. The Council was established within his agency and was staffed by [agency] employees. Furthermore, the statutes give certain responsibilities to the Chairman alone. [Cite.] Thus, [the requesting individual] was far more than a passive member of the Council.
Since the [agency] Commissioner was a member of a corporation with bonding authority and was required to be personally active in the Council, the compensation he received pursuant to Executive Law §169(c) was, in part, for his service to them. From his statutory responsibilities, it would appear that [the requesting individual] would have had to have spent considerable time and effort in working for both [the public benefit corporation] and the Council. Being a voting member of an agency with the bonding power of [the public benefit corporation] and Chairman of a Council, with significant staffing and administrative responsibilities, requires that serious attention be given to these functions. They are, therefore, integral to the role of the Commissioner of [the agency] and cannot be separated from the duties for which he is compensated.
The Commission has long held that the purpose of the revolving door restrictions is "to preclude the possibility that a former State employee may leverage his or her knowledge, experience and contacts gained in State service to his or her advantage or that of a client, thereby securing unwarranted privileges, consideration or action." Advisory Opinion No. 89-5. It would appear that, with his former significant positions on the [the public benefit corporation] board and on the Council, [the requesting individual] would now be in a position to take advantage of his knowledge, experience and contacts should he appear before either of those entities. Therefore, the Commission concludes that [the requesting individual] was not an uncompensated or per diem member of [the public benefit corporation] or the Council, and they are each to be considered his former agency for purposes of the two year bar restrictions.
The conclusion reached here should not be read to mean that every full time paid official must be subject to the two year bar with respect to every entity on which he or she serves by virtue of the full time position. There may be entities to which the official is not expected to devote significant time or effort. A body without bonding authority may not be as closely connected to the State. Certainly, an officer's sitting on a body as a non-voting member entails less responsibility than when voting is required. Similarly, when an official may designate a deputy to carry out his or her functions on the entity and does, in fact, designate another, the official may have little or no personal contact with the entity while in State service. These factors must be weighed in determining whether or not the two year bar is applicable.
[The requesting individual] asks one other question with regard to the Council. Noting its transfer from [the agency] to the Department [ ] and the change in the position of Chairman(1), he asks whether the Commission's conclusion is altered. Having examined the implications of the transfer, the Commission sees no reason to change its conclusion. The other members of the Council remain the same and the functions of the Council are unaltered. Thus, the reasons for the restrictions of the two year bar, discussed above, remain.
Finally, the Commission considers the question, posed in the abstract, of whether a lobbyist for an organization whose interests relate to a State agency may serve on an advisory board to the agency if the board does not render decisions which affect the client of the lobbyist. In Advisory Opinion No. 95-27, the Commission held that a member of the Public Health Council may not appear before the New York State Department of Health ("DOH"). However, in that opinion, the Commission noted the significant powers of the Public Health Council, which has the statutory authority to finally decide matters of importance. It also noted that the members of the Council had been designated as serving in policymaking positions by DOH and that the Council members enjoy a close working relationship with the Health Commissioner and his or her staff.
The question posed by [the requesting individual] concerns what appears to be a very different type of body. Unfortunately, he offers no details as to the powers of the board he has in mind, nor does he identify its name or the agency that it advises. There are numerous advisory bodies that exist in State government with specific powers and duties that vary. The Commission would have to examine the powers of a particular board in order to reach a definitive conclusion. Without this information, the Commission is unable to render advice.
The Commission concludes that [the requesting individual's] service as a member of [the public benefit corporation] and as Chairman of the Council by virtue of his having held the position of Commissioner of [the agency] precludes his appearing, practicing or rendering services for compensation before these bodies within two years of his having left State service, as such membership and chairmanship were integral to the role of the [agency] Commissioner for which he was compensated.
With regard to [the requesting individual's] final inquiry, the Commission is unable to render advice because of the lack of information.
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.
Evans V. Brewster,
Angelo A. Costanza,
Robert E. Eggenschiller, Members
Dated: September 18, 1996
1. At the time [the requesting individual] submitted his request, the bill to effectuate this transfer was pending. He asked whether its enactment would change the conclusion. As noted above, it has been signed into law.