|Advisory Opinion No. 98-06:||Determination of the former agency for purposes of the two year bar of a former employee of the Office of Children and Family Services and the restructured Department of Social Services.|
The following advisory opinion is issued in response to a request from [ ], a former employee of the Office of Children and Family Services ("OCFS") and the Department of Social Services ("DSS"), where he was [a senior-level official]. He is seeking an opinion with respect to the scope of his two year post-employment bar under Public Officers Law §73(8)(a)(i).
Pursuant to the authority vested in the State Ethics Commission ("Commission") by Executive Law §94(15), the Commission hereby renders its opinion that [the requesting individual's] "former agency" for purposes of §73(8)(a)(i) is (1) OCFS; and (2) the Office of Temporary and Disability Assistance ("OTDA") and those units of the Department of Labor ("DOL") and the Department of Health ("DOH") that perform functions that were performed by DSS prior to its restructuring, with the period of his two year bar, with respect to these agencies, running from his last date of service at DSS.
[The requesting individual] is a former State employee who served the State for [many] years. For the last seven of those years, he was [a senior-level official] with DSS' Division of [ ]. His overall responsibilities were directly related to the administration and management of State and Federal child welfare programs. He also assisted a Deputy Commissioner with respect to statutory and regulatory matters.
On August 20, 1997, Governor Pataki signed Chap. 436 of the Laws of 1997, which renamed DSS as the Department of Family Assistance but functionally transferred all of its powers and responsibilities to both new and existing entities. The Department was divided into OCFS and OTDA, and these two offices assumed many of DSS' functions. Other functions of the former DSS were transferred to DOL and DOH. In addition, as part of the reorganization of State government, OCFS assumed all of the functions of the Division for Youth ("DFY").
[Shortly after enactment of Chap. 436 of the laws of 1997, the requesting individual] took a leave of absence from OCFS, to which he had been transferred. He recently resigned.
[The requesting individual's] responsibilities while he was in State service were directly related to [ ] services in the areas of [ ]. As [a senior-level official] in the Division of [ ], he was responsible for [ ].
[The requesting individual] is now employed by [a private company] as a manager, where he works with other states to design and implement [ ] systems. He does not have any responsibilities within New York State, and he is not in the division responsible for hardware and equipment sales and support.
All of the activities in which [the requesting individual] participated while he was in State service were transferred, pursuant to Chapter 436, to OCFS. This new agency is responsible for the functions performed by the former DSS in such areas as foster care, adoption services, adoption assistance, child protective services, preventive services for children and families, services for pregnant adolescents, day care for children, child care resources and referral programs, and day services. In addition, it is responsible for the New York rural human services networking program; senior citizens centers; Indian affairs; adult protective services; domestic violence services; family-type homes for adults; and the functions performed by the Commission for the Blind and Visually Handicapped. All of these powers are derived from DSS. In addition, and as noted above, OCFS has been given all of the functions, powers and duties of the former DFY.
OTDA was given responsibility by Chapter 436 for the functions of the former DSS concerning financial support services, child and spousal support services, food stamps, low-income home energy assistance payments, supplemental security income payments, disability determinations and programs for the homeless, including the housing and assistance program, the single room occupancy support services program, the rehousing assistance program, the prevention program, and shelters for adults and families. It also provides services to refugees and immigrants and to Cuban and Haitian entrants.
The functions of the former DSS concerning employment programs for recipients of public assistance were transferred by Chapter 436 to the Department of Labor.
Finally, Chapter 436 transferred the functions of DSS concerning adult homes, enriched housing programs, residences for adults, assisted living programs and public homes other than shelters for adults, as well as the Medicaid audit function and the prevention of Medicaid fraud and abuse, to DOH. Responsibility for administering the Medicaid program had previously been transferred from DSS to DOH by Chapter 474 of the Laws of 1996.
[The requesting individual's] inquiry concerns the definition of his former agency for purposes of the two year bar.
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 in relation to a matter before that agency, for a period of two years after leaving State service.
In most instances, the determination of a former State employee's "former agency," before which he or she may not appear, practice or render compensated services, is easily determined. However, in a few instances the determination is complicated. This is one of those instances, and the Commission is, again, faced with a difficult question.
The Commission first addressed this subject when it held, in Advisory Opinion No. 90-12, that where an employee who was on leave without pay from one State agency served as an employee of another State agency, the two year post-employment restrictions covered both agencies.
In Advisory Opinion No. 90-22, the Commission considered an agency employee who worked as an administrator of another agency as a significant and regular assignment. It held that he had as his "former agency" for revolving door purposes both of these agencies. Thus, it was made clear that a former officer or employee could have more than one former agency.
The Commission also addressed this subject when the Office of Alcoholism and Substance Abuse Services ("OASAS") became the successor to the former Division of Substance Abuse Services ("DSAS") and the Division of Alcoholism and Alcohol Abuse ("DAAA"). The two merged agencies went out of existence. The Commission held that OASAS became the former agency of all DSAS and DAAA employees (Advisory Opinion No. 93-11), thereby establishing the principle that a "former agency" may be an altered structure from the one in which a former employee worked.
The Commission also had occasion to consider the question when there was a reorganization of agencies. In 1995, the New York State Medical Care Facilities Finance Agency ("MCFFA"), which had been a separate legal entity even though it was staffed by employees of the New York State Housing Finance Agency ("HFA"), was consolidated with the New York State Dormitory Authority ("DA"). MCFFA continued its separate legal existence, but the DA succeeded to its powers, duties and functions. The DA's Board of Directors became the Board of MCFFA. Some HFA employees who performed services for MCFFA were transferred to the DA.
The Commission held, in Advisory Opinion No. 96-7, that a former HFA employee who had been assigned exclusively to MCFFA matters had as his former agency both HFA and MCFFA. In addition, performing a functional analysis for §73(8)(a)(i) purposes, the Commission held that the former employee could not appear, practice or render compensated services on a matter before the DA if the matter was within the authority of MCFFA prior to the consolidation.
The Commission explained its reasons for taking a functional approach. If the former employee's bar were only as to MCFFA, he, unlike other former State employees, would be free to deal with his former colleagues, who became DA employees, on the same types of matters on which they worked while he was in State service. If his bar were to the entire DA, as successor to MCFFA, he would be unfairly prohibited from working with employees in an agency different from his former agency on matters unrelated to his prior work. The Commission reluctantly defined the two year bar by function rather than by agency, as it believed there was no alternative approach that led to an equitable result.
In Advisory Opinion No. 97-1, the matter before the Commission was the transfer of the Medicaid program, along with the employees responsible for that program, from DSS to DOH pursuant to Chapter 474 of the Laws of 1996. The Commission determined that the "former agency" of former employees of the DSS unit responsible for the Medicaid program was both DSS and the new unit in DOH.
In reaching this conclusion, the Commission determined that the rationale for applying a functional approach was equally applicable to the transfer of a particular function as it was to the merger or consolidation of agencies. If a former DSS employee who worked on Medicaid were restricted only from appearing or rendering services on matters before DSS, he or she would be free to appear before former colleagues, now employed by DOH. This would defeat the intent of the revolving door subdivision to preclude a former employee from leveraging his or her knowledge, experience and contacts gained in State service to his or her advantage or to the advantage of a client. Barring such an individual's appearance before all of DOH, however, on the theory that former colleagues are now employed by that agency, would be too broad a restriction and more sweeping than is necessary to achieve the objectives of the statute.
Thus, the Commission concluded in Advisory Opinion No. 97-1, as it did in Advisory Opinion No. 96-7, that a "former agency" for purposes of §73(8)(a)(i) can be less than an entire agency. It precluded an individual formerly employed in the Medicaid program within DSS from appearing, practicing or rendering services for compensation on a matter before DSS or the Medicaid unit in DOH.
These opinions demonstrate that the Commission's approach in determining a former employee's former agency for purposes of the two year bar where there has been an agency restructuring is to try to achieve the statutory objectives without restricting the activities of the former employee more than is necessary. It has recognized that this approach may, in some cases, remove the desired simplicity in the application of the statute, but where the only method of achieving a fair result is through the adoption of a functional analysis, the Commission will take this approach.
Turning to [the requesting individual], the agency at which he worked at the time he retired was OCFS. It is clearly his former agency, and his two year period runs from his termination from State service in [ ] 1998. However, the inquiry does not end there.
The Commission cannot overlook the very long period during which [the requesting individual] worked at DSS. His [many] years of State service, including seven as [a senior-level official], were almost entirely with that agency. Absent last year's reorganization, his two year bar would have been from DSS. The Commission believes that the breadth of his bar should not be altered simply because DSS has been restructured. It is here that a functional analysis is required.
Given his years of service with DSS, [the requesting individual's] bar should be extended beyond OCFS to follow the functions of DSS. In Advisory Opinion No. 95-19, the Commission said:
When an employee leaves one State agency and moves to another and, then, within two years of the move, leaves State service, the bar contained in §73(8)(a) runs for both agencies from the time of departure from the State. To conclude that this bar serves to prohibit only appearances before the last State agency for which a former employee worked would create an undesirable and unintended result: an employee could leave Agency One and move to Agency Two shortly before terminating State employment, thereby permitting him or her to immediately appear before Agency One even if the employee spent many years with that agency.
Since [the requesting individual] left DSS less than two years ago and the functions of the agency have been distributed, his two year bar should follow its functions. He is, therefore, barred from appearing, practicing or rendering compensated services in relation to matters before OTDA and those units of the DOL and DOH that are performing functions formerly performed by DSS. He may, however, appear, practice and render services in relation to matters before other units of those two departments.
Advisory Opinion No. 95-19 also examined the period of the two year bar where a former employee leaves different agencies at different times. The Commission said in that opinion:
Having multiple former agencies does not mean, however, that the restrictions contained in §73(8)(a) continue for two years from the time of leaving State service for all of the agencies the former employee served. The purpose of the revolving door statute is effectuated if the two year preclusion is measured from the date the former employee left each agency.
Since [the requesting individual's] bar to agencies, or parts thereof, other than OCFS is derived from his former position at DSS, the two year bar with respect to these agencies should run from the date he left DSS. Thus, as to OTDA and the units from which he is barred in DOH and DOL, his two year period began at the time he transferred from DSS to OCFS.
The Commission recognizes the difficulty this may cause for [the requesting individual] in defining the scope of his two year bar, but it sees no simpler alternative that is both fair to him and achieves the statute's objectives.
The Commission concludes that [the requesting individual's] "former agency" for purposes of the two year post-employment restrictions of Public Officers Law §73(8)(a)(i) is (1) OCFS; and (2) OTDA and those units of the DOL and DOH that perform functions that were performed by DSS prior to the restructuring of that agency, with the period of his two year bar, with respect to these agencies, running from his last date of service at DSS.
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,
Dated: May 13, 1998