|Advisory Opinion No. 96-24:||Application of the lifetime bar of Public Officers Law §73(8)(a)(ii).|
The following advisory opinion is issued in response to an inquiry from Thomas A. Maul, Commissioner of the Office of Mental Retardation and Developmental Disabilities ("OMRDD"), regarding the application of the lifetime bar, found in Public Officers Law §73(8)(a)(ii), to a former OMRDD employee who is now employed by a not-for-profit corporation that is licensed and funded by the agency. The corporation has designated the former employee to serve on a Task Force which will review and revise regulations to which she wrote many amendments while in State service.
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 lifetime bar of Public Officers Law §73(8)(a)(ii) prohibits the former employee from serving on the Task Force.
The former OMRDD employee who is the subject of Commissioner Maul's inquiry was [an analyst] when she was in State service. She was not designated by OMRDD as a policymaker. In the course of her employment at the agency, she processed rate appeals; worked on State plans; and, critically, wrote reimbursement and program regulations for licensed facilities, including intermediate care facilities ("ICFs"), Community Residences ("CRs"), and Day Treatment facilities, as well as for the Home and Community Based Services ("HCBS") Waiver program. With regard to regulations, she had sole responsibility for writing drafts to be issued for comment and for incorporating appropriate comments that were received into those drafts in order to prepare the proposals for promulgation.
According to OMRDD, the reimbursement regulations for the facilities and programs mentioned above are typically quite lengthy, although they vary considerably. They are written in a narrative form. The regulations cover the State's basic formula for determining funding, but they may also include ancillary matters such as an appeals process, reporting requirements, the basis of a rate, or, if appropriate, allowable costs. When OMRDD adopts a new methodology, a new regulation describing the methodology, including related ancillary components, is promulgated, and amendments are made as necessary thereafter.
For the CR, Day Treatment, and HCBS Waiver programs, the subject former employee wrote the initial reimbursement regulations and all amendments during her employment with OMRDD. In the case of the ICFs, the basic regulations had already been adopted when she assumed her agency responsibilities. She did, however, write the following amendments to the ICF reimbursement regulations: changes to the reimbursement limits for administration; yearly trend factors; addition of the Medicaid Assessment component of the reimbursement formula; developmental closure incentive program; changing the basis for the rates from a change in base every two years to an automatic trend forward without a base change; adjusting the formula used to calculate the annual trend factor; and restructuring the appeals process.
A Task Force has recently been established to review, revise and possibly revamp the reimbursement sections of the ICF regulations. Members of this Task Force will include agency staff as well as staff from several voluntary providers. The not-for-profit provider corporation where the former employee is currently employed has designated her as its staff person assigned to the Task Force. Commissioner Maul is concerned that because of her prior work on the ICF regulations, the lifetime bar might preclude her participation. Commissioner Maul also anticipates that in the future, OMRDD will form similar task forces to review regulations related to CRS, Day Treatment facilities and the HCBS program. Thus, this opinion may well have application beyond the immediate question addressed.
Commissioner Maul's inquiry concerns the application of the lifetime bar provision of Public Officers Law §73(8)(a)(ii), which provides:
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.
This provision, part of what are generally referred to as the "revolving door" provisions, sets the ground rules for what individuals may do with the knowledge, experience and contacts gained from public service after they have terminated their employment with a State agency. The lifetime bar is a permanent prohibition against a former employee's appearing before a State agency or rendering services pertaining to the same transaction in which the employee was directly concerned and in which he or she personally participated or which was under his or her active consideration while in State service.
Lifetime bar cases are decided on a case-by-case basis (Advisory Opinion No. 90-22). The fundamental question to be determined is whether the transaction on which a former employee proposes to work is the same as a transaction on which he or she worked while in State service. Here, we are dealing with a set of regulations that were initially adopted prior to the individual's employment by OMRDD but for which she wrote many amendments. Clearly, she personally participated in the adoption of these amendments. The question, therefore, is whether the Task Force's proposed revision of the regulations constitutes part of the same transaction on which the former employee worked while at OMRDD.
In Advisory Opinion No. 92-20, the Commission concluded that bills introduced in the same or different legislative sessions may constitute the same transaction, particularly where the bills affect the same or substantially the same population and present the same issues.
In Advisory Opinion No. 93-2, the Commission considered the adoption of regulations implementing a statute. It concluded that a former employee was precluded by the lifetime bar from working on the regulations where he had a role in drafting the statute while he was a State employee. The Commission said:
The knowledge, experience and expertise gained in drafting a statute become invaluable tools when seeking to shape the regulations needed to accomplish the mission of that statute. This knowledge may also be used to influence and effectuate significant policy determinations that were not otherwise articulated or successfully incorporated into the original statute. Certainly, the use of "insider" knowledge in either manner constitutes the very evil that Public Officers Law §73(8) is designed to address.
In Advisory Opinion No. 95-15, the Commission held that the lifetime bar prohibited a State employee who served on an agency sponsored Committee from continuing to serve on the Committee after he left State service. The Commission found that the employee had personally participated in the work of the Committee toward the development of a white paper. He had, in fact, written a technical resource paper for the Committee which was to be included in the white paper. The Commission concluded that the Committee's work in the development of the white paper was a transaction in which the employee personally participated while in State service, and the lifetime bar would prohibit his continued involvement with respect to the Committee's work on this paper after he left his State position.
In the situation Commissioner Maul has presented, the former employee would be working on revising regulations for which she wrote many amendments. Presumably, any revised regulations would affect the same population as the original regulations -- in this case, ICF providers -- and continue to provide the mechanisms for payment to them. While she did not amend every part of the regulations, it is reasonable to conclude that in writing the many amendments in which she was involved she had to consider the regulations as a whole. Thus, she actively considered and was directly concerned with the ICF regulations. Although we are dealing here with regulations, rather than a statute or a white paper, the reasoning remains the same. In fact, this situation is nearly identical to that discussed in Advisory Opinion No. 95-15; the Task Force here was a Committee there, and the regulations here was a white paper there.
The only Commission opinion that might lead to a different result is Advisory Opinion No. 93-13, where the Commission concluded that service by a former employee as a "volunteer" on a State board, commission or council would not violate the lifetime bar. It said that "Unpaid service performed at the request of the State and for the benefit of the State should not be construed as an appearance before a State agency."
The instant matter does not appear to come within this narrow exception to the lifetime bar. Although OMRDD requested the participation of the provider not-for-profit corporation on the Task Force, there is no indication that it specifically sought the services of the former employee. Furthermore, if the former employee were permitted to serve on the Task Force, she would be doing so as part of her duties for the not-for-profit corporation, for which she would be compensated. This is different from a public spirited citizen who agrees to serve the State without any remuneration. Consequently, the tests set forth in Advisory Opinion No. 93-13 are not met here; the agency did not name the former employee to the Task Force, and her service, if permitted, would be part of her regular job duties. Therefore, the Commission's precedents lead to the conclusion that she should be barred from working on the revision of the regulations.
Since lifetime bar cases are decided on a case by case basis, the conclusion reached here could differ with respect to any other Task Force created in the future. While the reasoning and applicable precedents would remain the same, the facts could be different. For example, in this case, the Commission was advised that the amendments she wrote remain largely intact. In other situations, where she wrote the initial regulations, it is possible that the current regulations would have so changed from those on which the employee worked while in State service that the two would not be the same for purposes of the lifetime bar. The Commission remains available to give advice in future situations.
The Commission concludes that the lifetime bar of Public Officers Law §73(8)(a)(ii) prohibits the former employee from serving on the Task Force that will review the regulations she amended while employed by OMRDD.
This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding concerning the requesting individual who acted in good faith, unless material facts were omitted or misstated by the person in the request for opinion.
Evans V. Brewster,
Angelo A. Costanza,
Robert E. Eggenschiller,
Donald A. Odell, Members
Dated: December 17, 1996