|Advisory Opinion No. 98-13:||Application of the lifetime bar of Public Officers Law §73(8)(a)(ii) to a clinical psychologist continuing to treat in her private practice clients she treated while in State service.|
The following advisory opinion is issued in response to a request by [ ], Director of Operations at the [ ] Psychiatric Center [the Center], a facility of the New York State Office of Mental Health ("OMH"). He asks whether the restrictions of the lifetime bar, contained in Public Officers Law §73(8)(a)(ii), preclude [ ], a clinical psychologist formerly employed by [the Center], from continuing to treat, in her private practice, three clients whom she treated at the [the Center] clinic.
Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") renders its opinion that the lifetime bar does not preclude [the former State employee] from continuing to treat these clients in her private practice.
[The former State employee] is a clinical psychologist who was first employed by [the Center] in November 1985. In [date] she began to work on a sixty percent basis, as she was developing an expanding private practice. She left [the Center] at the end of [ ] 1998 to engage in the private practice of clinical psychology on a full-time basis.
At the time of her departure from [the Center], [the former State employee] was responsible for 23 clients at the out-patient clinic to which she was assigned. Upon learning of her planned departure, three of her clients requested that she continue to see them in her private practice. [The requesting individual] has indicated that [the former State employee] made no efforts to recruit these clients, and that [the Center] clearly offered all of her clients treatment with another therapist at the clinic.
According to [the requesting individual], [the former State employee] is considered a highly competent psychologist who has been routinely assigned clients with complex and challenging clinical problems. The clients who seek her continued care are diagnosed with borderline personalities and tend to be extremely unstable. [The former State employee] has formed a highly productive therapeutic relationship with these clients, and the facility is strongly supportive of her continuing her treatment.(1)
The three clients who seek her continued services do not reside in an OMH facility; rather, they are living either in a community residence or independently. If they were to continue as clients of [the former State employee], they would no longer be subject to OMH's oversight, as their treatment by a private practitioner would sever their relationship with the agency and with [the Center].
If [the former State employee] were to continue to treat these clients, she would bill Medicaid directly for her services.
Public Officers Law §73(8)(a)(ii) provides:
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 personally participated during the period of his service or employment, or which was under his or her active consideration.
The quoted statute is known as the lifetime bar, and it prohibits a former State employee from rendering services for compensation 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 the individual's State service or which was under his or her active consideration during that period. Determinations under these provisions are made on a case-by-case basis. (Advisory Opinion No. 90-22.) As applied to [the former State employee], the provision prohibits her from working in the private sector on any transaction on which she worked as an employee of OMH. The question before the Commission is whether [the former State employee]'s continued psychological treatment of the same clients she treated while in State service would constitute her rendering services on the same "transaction."
In Advisory Opinion No. 91-2, the Commission discussed the term "transaction," which is not defined in the statute, as follows:
Comparing the language of the lifetime bar with the two-year bar proscribed by §73(8) of the Public Officers Law,(2) the Commission notes that the two-year bar precludes certain services "in relation to any case, proceeding or application or other matter"; the lifetime bar speaks to "case, proceeding, application or transaction". It seems clear that the two-year bar, which is absolute with respect to a former employee's former State agency, was meant to prohibit the widest possible scope of activities. The lifetime bar, which applies to the prohibited activities before all State agencies, is narrower in scope. The prohibited acts are very specific. (Emphasis in original.)
In Advisory Opinion No. 94-13, the Commission considered the application of the lifetime bar to a research scientist formerly employed by the Department of Health ("DOH") who, during his employment with the State, discovered a vaccine technology. He sought to work for a joint venture that hoped to commercially develop the technology. While considering the matter, the Commission received a submission from DOH in support of the scientist's activities. The Department argued:
'Transaction' cannot apply to scientific research, which by its nature extends over years and even generations.
. . . .
Research scientists cannot be treated like lawyers and other professionals in state service. A lawyer handles easily identifiable discrete issues such as specific regulations, legislative proposals, cases in litigation or government projects. Research, by contrast, is broad and ongoing. It cannot be viewed as reaching a defined end. It cannot be neatly divided into cases, bills, regulations, or issues. It continually meanders through the twists and turns of hypothesis, experiment, analysis and refinement.
The State Office of Alcoholism and Substance Abuse Services ("OASAS") which, like DOH, has employees who conduct scientific research, also argued that the lifetime bar should not preclude future research:
The research is not easily divided into components which would begin and end with a single employer. But rather, the research is unique to the scientist and frequently independent of the employer of that scientist.
In addition, the special nature of the work of research scientists has been recognized by the federal government's ethics law, which permits the Office of Government Ethics ("OGE") to exempt certain former federal employees from the federal "revolving door."(3)
After considering the submissions and the federal law, the Commission permitted the scientist to engage in the work he had proposed. It determined that the joint venture was not the same transaction for purposes of §73(8)(a)(ii). Among the reasons for this conclusion was that the vaccine research was the scientist's lifetime work, having begun long before his employment with DOH.
As can be seen, the lifetime bar must be interpreted not only on a case by case basis (Advisory Opinion No. 90-22), but also in light of the nature of the activities conducted by the individual in question. In the case of psychological treatment, it is nearly impossible to define when a transaction begins and ends. Patients are often treated for multiple disorders, and it would be nearly impossible to determine when treatment for one disorder is concluded while treatment for other disorders is continued. Were the Commission to attempt to make such distinctions, it would, of necessity, have to delve into the details of the treatment. This, of course, it may not do because of the privilege that protects client confidences. Furthermore, the Commission, in this instance, is mindful of the professional responsibilities of both [the Center] and [the former State employee] to assure effective continuing treatment for their clients with severe psychological disorders, and that a continuing relationship with a professional may play an important part in that treatment. Given the nature of her activities, the Commission holds that [the former State employee] may continue to treat the three patients who have requested to remain as her clients.
In reaching this conclusion, the Commission notes that [the former State employee] made no effort to recruit these clients. Such recruitment would be quite different from the treatment. It is neither covered by privilege nor is it an activity that is without easy definition. Any effort on the part of any professional who leaves State service to recruit as private clients former individual clients or patients whom he or she treated while in State service would constitute a clear violation of the lifetime bar. Not only would such activities violate the statute as written, but they would also be in direct contravention of the spirit of the statute, which is to assure "that public employees do not use their 'inside' information and contacts to their own advantage . . . ." (Advisory Opinion 89-1).(4)
The Commission concludes that the lifetime bar does not preclude [the former State employee] from continuing to treat, in her private practice, the three clients who have requested that she remain their treating psychologist since she made no effort to recruit them as private clients.
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.
Paul L. Shechtman, Chair
Evans V. Brewster
Henry G. Gossel
O. Peter Sherwood, Members
Dated: October 1, 1998
1. According to [the requesting individual], one of the clients is in the later stages of treatment and [the former State employee's] treatment of the client has been considered a remarkable success.
2. In addition to the lifetime bar, there is a statutory two year bar against a former employee appearing or rendering services in relation to any "matter" before his or her former agency. The two year bar is not applicable here because [the former State employee's] clients' relationship with [the Center] is severed once they are referred to a private practitioner, and there is no longer a matter before OMH.
3. For example, OGE permitted a former federal research scientist to continue his research in collaboration with scientists at his former federal agency because it would serve the national interest and because "his involvement is needed on so continuous and comprehensive a basis that other potential remedial procedures would be burdensome and impractical." [OGE opinion 89x4.]
4. In a related situation, the Commission, in an informal opinion, has prohibited a former State psychologist from giving testimony relating to an evaluation he made while in State service. Unlike continuing psychological treatment, a psychological evaluation is a discrete "transaction" which is subject to the lifetime bar.