|Advisory Opinion No. 98-14:||Whether a former seasonal State employee is eligible for the exception from the two year bar found in Public Officers Law §73(8)(b)(i).|
The following advisory opinion is issued in response to an inquiry from a former seasonal employee of [a State agency]. He asks whether he is eligible for an exception from the two year bar, contained in Public Officers Law §73(a)(i), by virtue of the provisions of §73(8)(b)(i), which authorize an exception when a State employee is terminated "because of economy, consolidation or abolition of functions, curtailment of activities or other reduction in State workforce."
Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") renders its opinion that [the requesting individual] is not eligible for the exception because he was not terminated for one of the reasons set forth in the statute.
[The requesting individual] was a seasonal employee at [the State agency] for about six months earlier this year. He served as a [title].(1)
During the term of his State service, [the requesting individual] applied for [a private sector job].(2)
The [State agency official] who has been appointed pursuant to this statute selected [the requesting individual] as one of three finalists to be considered for the [private sector position].(3) According to the position description, the successful applicant would report to [the State agency official] but would be hired as an independent contractor to [ ], a public benefit corporation.
Despite the description, the [State agency official] suggested hiring [the requesting individual] either through [the public benefit corporation], as proposed, or through Cornell University's [ ]. Both entities have contracts with [the State agency] to implement certain projects for the Program. In either case, [the requesting individual] would have been a subcontractor performing services under a contract with an entity that performs services for his former agency. As noted, he would have reported to [a State agency official of his former employing agency].
As [the requesting individual] appeared to be ineligible to fill the position because of the two year bar, [the State agency] hired another candidate. However, [the requesting individual] has asked the Commission for an opinion so that he understands, for future purposes, whether, as a seasonal [State agency] employee whose position recently expired, he may avoid the restrictions of the two year bar by obtaining an exception pursuant to Public Officers Law §73(8)(b)(i).
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 contains a two year absolute bar prohibiting a former employee from appearing, practicing or rendering services for compensation in relation to any matter before his or her former agency.
Public Officers Law §73(8)(b)(i) authorizes an exception to the two year bar in certain circumstances. It provides:
The provisions of subparagraph (i) of paragraph (a) of this subdivision shall not apply to any state officer or employee whose employment was terminated on or after January first, nineteen hundred ninety-five and before April first, nineteen hundred ninety nine because of economy, consolidation or abolition of functions, curtailment of activities or other reduction in the State work force.
The Commission has held that the two year bar applies to seasonal employees (Advisory Opinion No. 94-4). Consequently, [the requesting individual] may not appear, practice or render services in relation to any matter before [the State agency] during the period of his two year bar. Since he would have been required, if he had taken the new position for which he was considered, to report to [a State agency official at his former agency], the two year bar would have precluded him from accepting the position.
The only means by which [the requesting individual] could have held the position would be through his having been granted an exception from the two year bar, as provided for in Public Officers Law §73(8)(b)(i). His situation, therefore, presented the question of whether he, as a seasonal employee whose position has expired, is eligible for this exception.
Seasonal positions are described in Section 4.4(a) of the rules and regulations of the Department of Civil Service, entitled "Appointment to seasonal positions." This section provides:
Positions in the competitive class where the nature of service is such that it is not continuous throughout the year, but recurs in each successive year . . . shall be designated as seasonal positions and shall be subject to the provisions of these rules applicable generally to positions in such class.(4)
Those individuals who serve in these positions do not necessarily permanently sever their employment ties to the State. Subparagraph (b) of the same regulation entitles them to re-employment rights. It provides:
Upon the expiration of the employment season, the names of all persons employed in such seasonal positions shall be entered upon a seasonal re-employment list in the order of their first appointment to the title vacated by them at the expiration of such employment season. Such seasonal re-employment list shall be certified to the appointing authority at the commencement of or during the next employment season, and the persons whose names appear thereon as still qualified shall be entitled to re-employment in such positions in the order in which their names appear on such list . . . .
In considering whether §73(8)(b)(i) should apply to seasonal employees, the Commission begins by looking at the statutory language. By its terms, the exception applies to those employees who are terminated "because of economy, consolidation or abolition of functions, curtailment of activities or other reduction in the work force." The only possible language that might cover seasonal employees is "curtailment of activities." However, as noted above, seasonal employees leave not because of curtailment of activities but because their positions expire. They are not "terminated" with the finality usually associated with that term, as they are entitled to re-employment at the start of the following season. This argues for their ineligibility for the exception.
To the extent that there is doubt, the legislative history of §73(8)(b) is useful. It was first enacted in 1995.(5) At that time, the State was going through a severe retrenchment of its work force and was suffering through financial difficulties. Governor Pataki explained the reasons for the exception in his Memorandum of Approval:
Ideally of course there would be no need for even the limited relaxation of an important provision of our ethics laws effected by this bill. But the regrettable reality is that the hardships faced by New Yorkers who have lost and will lose their jobs in state government is a matter of overriding importance. As I previously stated, "while our government must and should shrink in size, fairness, common sense and principles of sound government all dictate that we take care to assist those who lose their jobs in obtaining gainful employment in the private sector."
This history removes whatever doubt there may be in the statutory language. It is clear that the exception was not intended to apply to seasonal employees, who are hired on a season-by-season basis and have rights entitling them to be rehired for the season following the one in which they worked. In fact, many seasonal employees work on this basis for many years. They are not seeking new employment on the assumption that their State employment has come to an end.
[The requesting individual], as a seasonal employee, is not eligible for the exception from the two year bar contained in Public Officers Law §73(8)(b)(i).
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
Robert J. Giuffra, Jr.
Henry G. Gossel
O. Peter Sherwood, Members
Dated: November 23, 1998
1. [Footnote deleted.]
2. [Footnote deleted.]
3. [Footnote deleted.]
4. Many of the agreements between the State of New York and the various recognized collective bargaining units refer to seasonal employees and contain specific provisions that apply to them. For example, the Civil Service Employees Association Administrative Services Unit Agreement (1995-1999) defines a seasonal position as a "position which is not established on a continuous basis throughout the year, but may be re-established in successive years. Seasonal positions are utilized for a specified period of time in conjunction with department or agency seasonal program needs."
5. Chapter 299, Laws of 1995. The 1995 law covered State officers and employees terminated on or after January 1, 1995 through December 31, 1995. In 1996, it was extended to cover persons terminated through December 31, 1996 (Chap. 183, Laws of 1996). In 1997, it was further extended to cover persons terminated through April 1, 1998 (Chap. 388, Laws of 1997). This year, it was again further extended to cover persons terminated through April 1, 1999 (Chap. 561, Laws of 1998).