|Advisory Opinion No. 97-5:||Whether Public Officers Law §73(8)(a)(i) bars a former employee of the Department of Environmental Conservation from appearing or rendering services with respect to a dispute regarding the New York Environmental Protection and Spill Compensation Fund.|
This advisory opinion, requested by the law firm of [ ], concerns the application of the post-employment restrictions of Public Officers Law §73(8)(a)(i) to a former employee of the Department of Environmental Conservation ("DEC") whom the firm wishes to retain as a consultant to review documents obtained from his former agency and prepare documents which may be reviewed by the agency, all in connection with a dispute with the State.
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 consultant may render the proposed services to the firm, except he may not prepare documents which may be reviewed by DEC, as the submission of such documents to the agency would constitute a violation of the two year bar.
[The law firm] represents a property owner who has received a demand letter from the State Comptroller's office seeking reimbursement for money expended by the New York Environmental Protection and Spill Compensation Fund ("Fund") for the cleanup of oil discharged on property he previously owned.
Upon making inquiry of the Assistant Attorney General assigned to represent the Fund, the firm was advised to contact DEC's Region [ ] office regarding the specifics of the oil spill in question. The firm then submitted a request pursuant to the Freedom of Information Law ("FOIL") to both DEC and the Comptroller, and obtained reports based upon monitoring wells and test borings, as well as plans for installing a remediation system. The firm would now like to retain the services of a [professional title] who is a former technical staff member of DEC's [ ] program unit to review the technical data and assist on the case.
The [former State employee] in question voluntarily left State service in [date]. He is now self-employed, although he also works for an environmental consulting firm. While in State service, he worked in DEC's central office in [ ] as an [job title], reviewing the technical aspects of remediating specific oil spills. He also acted as liaison between DEC's central office and its regional offices on technical matters. The firm has advised the Commission that the [former State employee] had no involvement with any aspect of the oil spill in question while a DEC employee.
In addition to reviewing the information obtained through FOIL, the [former State employee] may have to provide a written report or assessment to the firm which will be used in the presentation of its case. Since DEC is the agency remediating the spill, it will, according to the request, "undoubtedly continue to be involved in the situation." The firm asks whether it may retain the [former State employee] for the purposes described.
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 subdivision, 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.
Clearly, §73(8)(a)(i) precludes the [former State employee] from appearing, practicing or rendering services in relation to a matter before DEC. The term "appearing" has been broadly construed by the Commission. It is not limited to a physical appearance before a former employee's former agency; rather, the term includes various types of submissions which are signed by a former employee or which involve identifying matter specific to the him or her.(1)
For example, the Commission has held that submission of a permit application, a grant application, a contract proposal or a professional stamp or seal would constitute a prohibited appearance.(2) With regard to rendering services on a matter before an individual's former agency, the Commission has held that assisting a client in the preparation of documents for submission to his or her former agency would violate §73(8) whether or not the agency had knowledge of the former employee's work.(3)
The Commission has also held that the work product of a former employee prepared for a State agency other than his or her former agency may, in certain circumstances, constitute an unlawful appearance. In Advisory Opinion No. 89-8, the Commission held that a former State employee was prohibited from preparing a permit application where, although it would be submitted to an agency without violation, it would necessarily be reviewed by the individual's former agency. The Commission stated that:
[i]n the event that the requesting individual is required to appear or practice before any other State agency in circumstances where, pursuant to statute, regulation or policy, the other State agency must utilize the expertise of the former employing agency to reach its own decisions on those particular applications, proceedings or matters before it, the requesting individual is barred from any of the proscribed activities in relation to any portion of the matter which would necessarily be reviewed by the former employing agency.
In Advisory Opinion No. 94-6, the Commission concluded that there was no appearance before an individual's former agency where the former employee had no reason to know or anticipate that his work product, or any other information that identified him as having prepared any documents, would be submitted to his former agency. In that opinion, the Commission stated that "if the former employee can reasonably assume that his/her work product will reach the individual's former agency, the employee would violate the two year bar by receiving compensation for services rendered on a matter before his former agency."
In the situation now presented to the Commission, there would clearly be no bar to the [former State employee]'s reviewing the documents obtained from DEC and advising the attorneys who had retained him. No provision of §73(8) would bar such activity.
The more difficult question is whether the [former State employee] can prepare documents that would be submitted to the Fund, which is within the Comptroller's office, where the Fund may well submit the documents to his former agency. As noted, §73(8)(a)(i) prohibits the rendering of compensated services in relation to a matter before a former employee's former agency. Since it can reasonably be assumed that DEC would receive the documents prepared by the [former State employee], there would be a violation of §73(8)(a)(i) if there were a matter before DEC. The issue of whether there is a matter before the agency reviewing documents prepared by a former employee did not arise in the previously noted advisory opinions. To determine whether there is a matter before DEC in this situation, the Commission must examine how the Navigation Law operates with regard to oil spills.
Article 12 of this law establishes the requirements for the cleanup and removal of oil spills, and creates, within the Department of Audit and Control, the Fund as a mechanism to pay for remediation. Persons who have discharged oil are given the first opportunity to clean up the spill to the satisfaction of the State.(4) If a satisfactory cleanup is not forthcoming, the DEC Commissioner has the authority to contract with private entities for cleanup services. Contractors retained must operate under the agency's direction and in accordance with agency procedures.(5) The Commissioner then submits a bill for the cost of the cleanup to the Fund. Upon Certification by the DEC Commissioner that the costs associated with the cleanup are appropriate and the discharger has been identified, all expenses incurred by the State in the removal of the oil discharged, including the costs of contractors, are paid promptly by the Fund.(6)
Costs incurred by the Fund are to be recovered by its administrator, an appointee of the State Comptroller, who is represented by the Attorney General. The Attorney General is required to seek satisfaction from the discharger, which is strictly liable for all cleanup and removal costs and all direct and indirect damages paid by the Fund.(7) If the discharger does not reimburse the fund, the Administrator may pursue the matter in Supreme Court.(8)
Based on this statutory scheme, it could be argued that after DEC has been paid by the Fund, there is nothing left for that agency. Under this theory, once payment has been made, it is for the Fund, which is within the office of the State Comptroller, to pursue all claims. Since the outcome of the Fund's efforts is of no concern to DEC, there is no matter before that agency.
However, this view of the process places form over substance. In practice, DEC continues to play a significant role as the Fund seeks to recover the amount it has paid to cover the agency's cleanup costs. Since the Fund administrator does not have knowledge of the facts, he must, of necessity, rely on DEC's knowledge and expertise in pursuing the claim. For instance, if a dispute arises as to the identity of the discharger, the Fund Administrator is likely to request that DEC perform more analysis and submit additional documentation in support of its position. If a settlement is offered by the discharger, the Administrator is likely to seek the advice of DEC, given its knowledge of the spill and the required cleanup. While the Commission recognizes that final decision making authority rests with the Administrator, his determinations will be heavily influenced by the supporting data and documents supplied by DEC, as well as the views of the agency.
Analyzed in this light, and based upon the actual practice in these cases, the matter before DEC does not end when it is paid by the Fund. Even though the cleanup has been completed, DEC continues to play an active role in the State's attempt to recover its costs. The agency's role is completed only when the Fund concludes its efforts in connection with its claim or claims against private entities. Thus, although DEC no longer has any legal responsibility after it has been paid, it cannot be said that, for revolving door purposes, the matter has been concluded until the Fund's claim has been finally paid or abandoned.
Returning to the [former State employee], if he were to prepare documents which he has reason to believe would be reviewed by DEC, his former agency, he would be rendering services for compensation in relation to a matter before the agency. This would fall squarely within one of the prohibitions of §73(8)(a)(i). Thus, he may not prepare any such documents.
The Commission concludes that the [former State employee] may be retained by the law firm to review papers obtained from DEC; however, he may not prepare documents for the firm if it is foreseeable that such documents may ultimately be reviewed by DEC, as he would be rendering services for compensation in relation to a matter before the agency.
This opinion, until and unless amended or revoked, shall be 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 supported documentation.
Angelo A. Costanza,
Robert E. Eggenschiller,
Donald A. Odell, Members
Evans V. Brewster, Member
Dated: February 10, 1997
1. See Advisory Opinion No. 91-9.
2. See Advisory Opinion Nos. 87-7, 89-9, 94-6.
3. See Advisory Opinion No. 94-6.
4. Navigation Law §183(1).
5. Navigation Law §176(2).
6. Navigation Law §176(6).
7. Navigation Law §181.
8. Navigation Law §188.