|Advisory Opinion No. 97-15:||Application of §73(8)(a)(i) of the Public Officers Law to a former employee; application of the net revenue limitation to a solely owned business; "work product" does not include the taking of fingerprints.|
The following advisory opinion was requested by [ ], who asked whether the post-employment restrictions contained in Public Officers Law §73(8)(a)(i) prohibit his performing certain services as a consultant in connection with applications for [ ] licenses to be submitted to [ ], his former agency.
Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by §94(15) of the Executive Law, the Commission hereby renders its opinion that neither [the requesting individual] nor the employees of the corporation of which he is sole owner may, within two years of his having left State service, assist in the preparation of such applications or serve process in connection with the filing of such applications. [The requesting individual] and his employees may, however, take the fingerprints of applicants.
[The requesting individual] served as a [ ] investigator for the [former agency] until his resignation on [date]. He is currently a licensed private investigator who, through a business recently incorporated, provides various consulting services to individuals and businesses. [The requesting individual] has asked about offering services in connection with [certain matters before his former agency].
Every application for a [ ] license must be submitted to the [former agency]. [The requesting individual] noted in his letter requesting the opinion that every applicant for a license is required to be fingerprinted as part of the application process. He has asked whether he or his employees may take the fingerprints of applicants. He has also asked whether he or his employees (1) may provide consulting services as an advisor to individuals or businesses in the preparation of applications where his name will not appear on the application, or (2) provide process service functions in connection with the filing of applications.
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.
Section 73(8)(a)(i) precludes a former State employee from appearing, practicing or rendering services in relation to a matter before his or her former agency. The term "appearance" has been broadly construed by the Commission. It includes a physical appearance, as well as various types of submissions which are signed by a former employee or which involve identifying matter specific to the individual.(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 constitutes a prohibited appearance.(2)
The Commission has also held that a former employee who assists a client in the preparation of documents for submission to his or her former agency would violate §73(8)(a)(i) even if the individual's participation is totally unknown to the former agency.(3) Such assistance would constitute the rendering of services for compensation in relation to a matter before the former agency.
Applying these precedents to [the requesting individual], the Commission holds that he is prohibited from personally serving process on the [former agency], as such an action would require him to be physically present at his former agency with respect to a matter before the agency. He is also prohibited from assisting clients in the preparation of applications for [ ] licenses regardless of whether his name appears on the application, as such assistance would cause him to render services in relation to a matter before the [former agency].
[The requesting individual] has asked whether employees of his solely owned corporation may make appearances which he, himself, would be barred from making. In Advisory Opinion No. 90-14, the Commission held that "even if one member or associate of a firm is disqualified from appearing before his or her former agency, other members or associates of the firm would not be disqualified from engaging in the matter, as long as the distribution of net revenues from State-related activities is in accordance with [Public Officers Law] §73(10) and this Advisory Opinion."(4) The term "net revenue" was defined as "gross revenue received from appearing, practicing, communicating or otherwise rendering services in relation to any matter before, or transacting any business with, a State agency minus all fixed operating expenses in an appropriate proportion to such gross revenues of the firm."
[The requesting individual's] business is conducted through a corporation in which he is the sole owner, although the corporation may hire employees. Since the business is owned and operated by [the requesting individual], there is no method by which he could be divorced from the net revenues. Even if an employee carries out a task without his personal participation, payment for the service is made to him through his corporation. Therefore, as he cannot be segregated from the net revenues, his employees are barred from engaging in the activities from which he is barred. They cannot serve process on the [former agency] or assist in the preparation of applications for [ ] licenses.
The final question concerning [the requesting individual's] taking of fingerprints of [ ] license applicants is more complex. The Commission has held that the work product of a former employee which is to be submitted to his or her former agency may constitute an unlawful appearance. In Advisory Opinion No. 89-8, the Commission said:
. . .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.
The question here is whether [the requesting individual]'s taking of fingerprints for the purpose of identification is his "work product." The Commission must consider the meaning of this term. It is defined in Black's Law dictionary as "material prepared by an attorney in anticipation of litigation, including private memoranda, written statements of witnesses and mental impressions of personal recollections prepared or formed by an attorney. . ." The Commission, in its opinions, has broadened the defined concept to encompass work prepared by other than an attorney. It has barred a former employee from submitting to his or her employee former agency: environmental risk assessments and documentation in support of a permit application (Advisory Opinion No. 89-8); needs assessment surveys conducted by a consultant (Advisory Opinion No. 90-21); data and analysis (Advisory Opinion No. 94-6); data concerning primary health care services delivered at certain clinics (Advisory Opinion No. 94-15). All of these are in the nature of documents developed by former State employees using their expertise and representing their thoughts.
In contrast, the Commission, in Advisory Opinion No. 96-4, permitted a former DOT employee to sell traffic signal equipment to municipalities and others where DOT was to inspect and approve the equipment. It concluded that the sale of goods, rather than personal services, was permitted even though the goods were subject to inspection by the individual's former agency. The Commission stated:
In those situations where a former employee has rendered services and had his or her work product reviewed by the former agency, the Commission has found a violation of the two year bar. [cites omitted] However, here, no services of the former employee would be reviewed by his former agency. Instead [the requesting individual] proposes to sell goods, and it is the goods that must meet agency specifications. . .Even if it (the former agency) did know of [the requesting individual's] involvement as the salesperson, it is not likely to affect the outcome of the inspection. The signals must be inspected based on technical, measurable standards, and they will pass or fail inspection based on those standards, not on who sold the signals.
The taking of fingerprints does not clearly fall within any of these precedents. It is not in the nature of the work product of the individual taking the prints, as he or she does not create anything original. The prints pre-exist on the fingers of an individual. The person taking the prints merely transforms them into a format that can be used. Furthermore, the agency receiving the prints makes no judgment based on the services provided by the person taking the prints. Its judgments are made solely from the identifying information contained in the new format, which information was not developed or modified by the person who took the prints.
Although the person taking the prints performs a personal service -- and, therefore, does not fall squarely within Advisory Opinion No. 96-4 dealing with the sale of goods -- the Commission believes that the taking of prints does not constitute the work product of the individual. It holds that a former employee may perform the service even if he or she knows that the prints in their new format will be submitted to his or her former agency.
The "evil to be avoided" by the post-employment restrictions is the misuse by a former employee of knowledge and contacts to the benefit of a private client.(5) Here, [the requesting individual's] taking of the prints is not a factor to be considered by the [former agency] in its ultimate decision as to whether to grant or deny a license. Thus, he is not in a position to use any special knowledge of the agency he may possess or any contacts he may have. Consequently, the reasons for the two year bar are not present in the circumstances.
The Commission concludes that under the provision of Public Officers Law §73(8)(a)(i), neither [the requesting individual] nor his employees may, for a period of two years after his having left State service, provide consulting services in connection with applications to be submitted to the [former agency] for [ ] licenses by assisting in their preparation or by providing process service functions in connection with their filing. [The requesting individual] and his employees may, however, take the fingerprints of applicants for an [former agency] license.
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
Donald A. Odell, Members
Dated: June 9, 1997
1. See Advisory Opinion No. 91-9.
2. See Advisory Opinion Nos. 87-7, 89-9, 94-6.
3. See Advisory Opinion Nos. 89-7, 90-7.
4. Advisory Opinion No. 90-14.
5. See Advisory Opinion Nos. 90-3, 96-15.