|Advisory Opinion No. 98-1:||Application of the two year bar to a former employee of the Department of Motor Vehicles who wishes to apply to his former agency for the licenses he needs to open a driving school.|
The following advisory opinion is issued in response to a request from [ ], a former employee of the Department of Motor Vehicles ("DMV"), who wishes to apply to his former agency for the licenses necessary to operate a driving school.
Pursuant to the authority vested in the State Ethics Commission ("Commission") by Executive Law §94(15), the Commission hereby renders its opinion that the two year post-employment restrictions of Public Officers Law §73(8)(a)(i) prohibit [the requesting individual] from applying to his former agency for the necessary licenses.
[The requesting individual] was a Motor Vehicles License Examiner ("MVLE") at Grade SG-12 with the Testing and Investigating Unit of the [ ] District Office of DMV for approximately [ ] years. This unit has [ ] employees. [The requesting individual] retired on [ ] under the State's early retirement incentive program.
Upon retiring, [the requesting individual] sought to open and operate a driving school. He obtained a vehicle, an office, insurance, and audiovisual equipment, and he filed a certificate of doing business under an assumed name. When he submitted an application, along with a $50 fee, to DMV for a license to operate the school, he was apparently advised by the agency that the post-employment restrictions of the Public Officers Law prohibited his application. [The requesting individual] then sought an informal advisory opinion from the Commission.
On June 4, 1997, the Commission issued the requested opinion in which it held that the two year post-employment restrictions prohibited [the requesting individual] from applying to his former agency for the necessary licenses. The informal opinion stated that the Commissioner of DMV is granted discretion with regard to the issuance of such licenses, and that [the requesting individual's] applications would constitute his appearing before his former agency, which is prohibited by the two year bar.
[The requesting individual] has now requested a formal opinion of the Commission.
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 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 terminate their employment with the State. It contains an absolute two year bar which prohibits a former State employee from appearing before his or her former agency, or working for compensation on a matter before the former agency, for a period of two years after termination from State service.
Vehicle and Traffic Law §394(2) provides that no person shall engage in the business of conducting a drivers' school without being the holder of a license for such purpose issued by the Commissioner of DMV. The Commissioner may deny an application for such a license if, in his or her discretion, the Commissioner determines that, among other things, the applicant has failed to furnish satisfactory evidence of good character, reputation and fitness (Vehicle and Traffic Law §394[d]; 15 NYCRR part 76.2[b]). In order to be granted a license, the applicant, or an instructor hired by the applicant, must possess certain qualifications, including a minimum number of hours of behind-the-wheel instruction; if the applicant does not possess the minimum number of hours, he or she may apply to the Commissioner for a waiver (15 NYCRR part 76.2[i]). [The requesting individual] has informed the Commission that he would need to apply for such a waiver. He believes that it would be granted based on his DMV experience as an MVLE, since, for the past twelve years, the road tests which he gave were "instructional" in nature.
An application for a license to operate a driving school is submitted to the driving school unit at DMV's central office in Albany. Upon receipt of an application, the central office assigns the district office to conduct a site visit of the applicant's proposed office and instructional space.
The licensee must maintain specified records for a period of three years and keep them open for inspection upon request of the Commissioner or his or her representative (15 NYCRR part 76.8). Staff of the district office conducts such inspections on a periodic basis. Hearings are conducted for violations of DMV's regulations on record keeping. DMV also has regulations regarding the advertisements of driving schools. The Commissioner may seek to suspend or revoke a license when a licensee has violated DMV regulations or for other specified reasons -- such as the conviction of the licensee of a felony or any crime involving violence, dishonesty or moral turpitude -- and may assess a civil penalty for each violation (Vehicle and Traffic Law §394).
In his submission to the Commission, [the requesting individual] indicated that his driving school would be a one person operation. This would require that, in addition to a license to operate the driving school, he would need to apply to DMV for an instructor's certificate (Vehicle and Traffic Law §394; 15 NYCRR Part 76.15). The Vehicle and Traffic Law provides that such a certificate shall be issued only to a person of good reputation and moral character, whose driving record, as determined by the Commissioner, qualifies him or her as an instructor (Vehicle and Traffic Law §394). The Commissioner's regulations provide that an instructor must, among other things, be of sound mind and good moral character (15 NYCRR Part 76.15). To obtain an instructor's certificate, an applicant must pass an eye test, a written test, a road sign test and a road test in which he or she demonstrates the ability to instruct (15 NYCRR Part 76.15[d]). An application for an instructor's certificate must identify the driving school or schools for which the applicant is to act as an instructor, and the certificate is limited to use in connection with those schools (Vehicle and Traffic Law §394). While an application for an instructor's certificate is submitted to DMV's central office in Albany, the tests are administered by DMV's district offices.
Should [the requesting individual] open a school, he would obtain forms from DMV which he would sign for each student, certifying that the student has completed a required driving course. This certificate would be submitted to DMV at the time of the road test. In addition, [the requesting individual] would make appointments with DMV and drive his students to the testing site, where the test would be given by a former member of his unit.
Turning to the application of the revolving door restrictions, the Commission, in Advisory Opinion No. 94-2, held that, despite the language of Public Officers Law §73(8)(a)(i), a former employee may apply to his or her former agency for the renewal of a license previously issued. It noted that a "renewal application consists largely of updating information [the applicant's] former agency has already reviewed and approved, at the time of the original application." In [the requesting individual's] case, the applications would be initial applications. The questions that must be addressed are whether the holding in Advisory Opinion No. 94-2 can be extended to an application for an initial license or certificate, and, if it can be so extended, under what circumstance.
At first glance, [the requesting individual] makes a good case for extending the Commission's holding with respect to license renewals to certain initial license applications. He was not a high level employee; he is making the application on his own behalf rather than as representative of a third party; the discretion of the agency in granting or denying the license is limited; and the agency does not actively regulate the licensed activity, although it does have oversight responsibilities. Considering these factors, the Commission's inclination would be to permit [the requesting individual] to proceed with his application. However, there are considerations here that are not obvious at the outset which cause the Commission to determine that this is not a good case for extending the principle first set forth in Advisory Opinion No. 94-2.
First, although [the requesting individual's] application to operate a school would be submitted to DMV's central office in Albany, that office would require the district office to conduct an on-site inspection of the premises. Since [the requesting individual], prior to his retirement, worked in the district office, this inspection would be conducted by his former colleagues. Thus, [the requesting individual's] application would be considered not only by his former agency, but by the particular unit of the agency located in the same office in which he worked. The same problem arises with respect to his road test to obtain his instructor's certificate; he would be judged by individuals with whom he directly worked while he was a State employee.
These difficulties would continue even after [the requesting individual] was licensed. Oversight of his operation would be by the same district office. This would include inspection of his books and records periodically, as well as receiving complaints about his operation. DMV has informed the Commission that complaints about the advertising of driving schools is common. Finally, [the requesting individual] would be making road test appointments for his students with his former colleagues and accompanying his students to the test sites. Competitors could well perceive that [the requesting individual] and his students were receiving special treatment based upon his prior association with those in DMV with whom he had worked most closely during his years at the agency.
The Commission recognizes that this determination places [the requesting individual] in a difficult position, but it is bound to uphold the law. It cannot ignore the fact that [the requesting individual], in applying for and operating a driving school, would be dealing with the same individuals with whom he most closely worked while serving at DMV.
Given these facts, the Commission determines that [the requesting individual's] applications would be in violation of the two year bar.
The Commission concludes, based upon the specific facts set forth herein, that the two year post-employment restrictions of Public Officers Law §73(8)(a)(i) prohibit [the requesting individual] from applying to his former agency for the initial licenses he needs to operate a driving school.
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
Henry G. Gossel
Paul L. Shechtman
O. Peter Sherwood, Members
Dated: February 4, 1998