New York State
Ethics Commission


Advisory Opinion No. 97-2: Whether the lifetime bar of Public Officers Law §73(8)(a)(ii) precludes former State employees from ever performing services under contract with their former agency.

INTRODUCTION

The following advisory opinion is issued in response to separate inquiries, one from [Requestor A] and the other from [Requestor B]. Both are former [job title] with the New York State Department of Taxation and Finance ("Department"). Each has asked whether the lifetime bar, found in Public Officers Law §73(8)(a)(ii), precludes the Department from hiring him as a consultant to work under contract with the Department.

Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") hereby renders its opinion that §73(8)(a)(ii) does not prohibit the former Department employees from contracting with the Department for their rendering of services to the Department as long as such services do not relate to any case, proceeding, application or transaction with which they were directly concerned and in which they personally participated, or which was under their active consideration, while they were in State service. However, the Department may, pursuant to Public Officers Law §73(8)(d), adopt rules concerning practice before it by its former employees which are more restrictive than those provided by §73(8)(a).

BACKGROUND

In August 1996, the Department issued a Request for Proposal ("RFP") to identify vendors qualified to provide computer programming services, which vendors would be placed on a qualified list for future projects. In December 1996, the Department issued several "mini-bids" to the previously established pool of qualified vendors seeking individual programmers with both mandatory and preferred technical experience. Among those sought were eleven IBM programmers with the following skills:

four years hands-on ADS/O programming experience on IBM; four years hands-on IDMS programming; four years hands-on with JCL on MVS/XA; two years experience with IBM's TSO/SPF; two years hands-on using CICS (Command level); two years DB2 experience; one year Powerbuilder experience; and INTERTEST experience.(1)

Currently, the Department is in the process of reviewing the qualifications of the individual candidates submitted by the vendors. The Department will score each candidate based on his or her experience and conduct interviews. At this time, the Department does not know to which project any selected individual would be assigned.

Both of the individuals who requested this opinion, [Requestor A and Requestor B], were, in the past, [job title] with the Department. Employees holding this title work under the general direction of an Associate [job title]. Although job duties will vary depending on assignment, a [requestor job title] may conduct surveys and participate in feasibility studies of computer applications, prepare system specifications and participate in program design, coding, testing and debugging and documentation review. Individuals serving in this title are required to have knowledge of programming techniques and concepts, including the use of various computer programming languages, systems analysis and design, and data processing concepts.(2)

On November 22, 1996, the Commission received a letter from [Requestor A] requesting an interpretation of the post-employment restrictions contained in Public Officers Law §73(8)(a) as applied to the circumstances he described. He indicated that he left his position in the Department as a [job title] in [date].(3) When the Department issued the mini-bid in December, 1996, he did not submit his resume. He indicated, however, that a friend of his who had also previously worked for the Department submitted a resume, but was informed by the Department that he was ineligible for the consulting position due to his prior employment with the Department. [Requestor A] was later informed by a vendor that he, too, was barred for life from ever working for the Department as a consultant.

On December 16, 1996, the Commission received a letter from [Requestor B] who related similar information. [Requestor B] left his position with the Department as a [job title] in [date].(4) In response to the December 1996 mini-bid, a computer consulting firm submitted his resume to the Department. He indicated that, despite his qualifications, he was denied an interview for the position based on his previous employment with the Department and was informed by the Department that he was "barred from ever working as a consultant at this State agency for life."

[Requestor A] and [Requestor B] have both asked the Commission to consider whether the Public Officers Law's post-employment restrictions forever bar them from working as consultants to their former agency.

APPLICABLE STATUTE

Public Officers Law §73(8)(a) provides:

(i) 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.

(ii) 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.

Generally referred to as the "revolving door" provision, §73(8)(a) 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 the State.

Also pertinent to this inquiry is Public Officers Law §73(8)(d), which provides:

Nothing contained in this subdivision shall prohibit any state agency from adopting rules concerning practice before it by former officers or employees more restrictive than the requirements of this subdivision.

DISCUSSION

The response to the question presented to the Commission requires an understanding of the interrelationship between the two year bar of §73(8)(a)(i) and the lifetime bar of §73(8)(a)(ii). The Commission will use this opportunity to examine the often confused differences between the two.

The two year bar prohibits a former State employee from appearing, practicing or rendering compensated services on any matter before his or her former agency for a period of two years after having left State service. The statutory language, cited above, makes it clear that these restrictions apply to any matter before any part of an individual's former agency. They are applicable whether or not the matter is within the unit in which the former employee worked, and whether or not the employee had anything to do with the matter while in State service. In short, the bar is agency wide. Thus, where a two year bar question arises, the central issue is whether the individual's activity is before the agency he or she left. The Commission does not look at the particular matter. As its short hand title suggests, this agency wide bar continues for a period of two years following an employee's departure date. After the two year period has expired, the former employee is free to appear or practice before his or her former agency, subject only to the lifetime bar, which is narrower in scope.

The lifetime bar, found in §73(8)(a)(ii), prohibits a former State employee from working on any case, proceeding, application or transaction in which he or she personally participated or which he or she actively considered while in State service. Here, the focus is not on the agency; rather, it is solely on the specific transaction. If the individual worked on the transaction while in State service, he or she cannot ever again work on the same transaction, whether or not it is before an agency.

The question currently before the Commission is, in essence, whether former employees of the Department can return to work for the Department as consultants after they have left the Department. We now turn to Commission opinions. Several opinions have held that a former employee cannot seek work or contract to work with his former agency by virtue of the restrictions of the two year bar. In Advisory Opinion No. 91-17, the Commission held that a former employee could not submit his resume to his former agency when agency approval was required for him to work on a contracted project. In Advisory Opinion No. 89-9, the Commission similarly prohibited the submission of a contract proposal by a former employee. More recently, in Advisory Opinion No. 94-21, it was made clear that a former employee could not contract with his former agency. All of these opinions were based upon the restrictions found in the two year bar, and in each, the Commission found that the former employee was seeking to appear before his former agency. Thus, it is now beyond argument that a former employee may not contract as a consultant with his or her former agency for a period of two years after leaving State service.

In the case of the individuals who requested this opinion, both left the Department more than two years ago. Therefore, the above restrictions are no longer applicable to them. Based on the analysis set forth earlier in this section of the opinion, they are free to appear before the Department and contract with the Department unless the contract would run afoul of the lifetime bar. We, therefore, look at the restrictions of §73(8)(a)(ii).

As noted above, the considerations in a lifetime bar matter relate to the specific "case, proceeding, application or transaction" on which the former employee will be working. Is it the same as one on which he or she worked while in State service? This is a fact specific inquiry that must be determined on a case by case basis (Advisory Opinion No. 90-22). In this case, the question cannot be answered because the Commission does not know to which projects the former employees would be assigned if they were permitted to contract with the Department. What can be said is that the lifetime bar would restrict them only from working on those transactions on which they worked while in State service. As to all other projects, there is no restriction on their ability to contract with the Department.

In sum, since both [Requestor A] and [Requestor B] left the Department more than two years ago and are no longer subject to the two year bar, they are free to contract with the Department, but they may not work on any case, proceeding, application or transaction on which they worked while employed by the Department.

This would end the analysis but for §73(8)(d). This section authorizes any agency to adopt rules more restrictive than those set forth in the statutes just discussed. From discussions with the Department, the Commission is unable to determine whether or not it has exercised its authority under this section. It has, in support of its position, mentioned both §73(8)(a) and an internal policy. As noted, it cannot rely on the statute. However, if it has a more restrictive policy, it would be appropriately acting pursuant to its authority under §73(8)(d).(5) The Commission is not in a position to resolve any dispute, if there is one, between the individuals who requested this opinion and the Department with regard to Department policy.

CONCLUSION

The Commission concludes that Public Officers Law §73(8)(a)(ii) does not prohibit former employees of the Department from contracting with the Department for their rendering of services to the Department as long as (1) their two year bar has expired, and (2) such services do not relate to any case, proceeding, application or transaction with which they were directly concerned and in which they personally participated, or which was under their active consideration, while they were in State service. However, the Department may, pursuant to Public Officers Law §73(8)(d), adopt rules concerning practice before it by its former employees which are more restrictive than those provided by §73(8)(a). The Commission is not in a position to resolve any dispute that may exist between former employees and the Department with regard to any such policy.

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: February 10, 1997


Endnotes

1. Position Recruitment form, New York State Department of Taxation and Finance - RIM Management Services.

2. [Job title] - Civil Service Test Announcement No. [ ] issued 9/85.

3. 4. In [date], [Requestor B] transferred to a similar position with [another State agency]. He resigned from State employment on [date]. He currently works as a private consultant.

5. The Department has supplied the Commission with a clause contained in a contract with one of its vendors, which presumably is part of a model contract, that provides that "the Contractor agrees not to hire current New York State employees for the express purpose of assignment to the Tax Department." The Commission notes that this clause does not affect former Department employees and that it is a contractual restriction on the contractor rather than a policy imposed by the Department on its employees.



URL: http://www.nysl.nysed.gov/edocs/ethics/97-02.htm