|Advisory Opinion No. 98-17:||Application of Public Officers Law §73(8) to a former employee of the Thruway Authority who is now Executive Director of a multi-state coalition which includes his former agency as a member.|
The following advisory opinion is issued in response to a request from [ ], a former employee of the Thruway Authority ("Authority"), who asks how the post-employment restrictions of Public Officers Law §73(8)(a) apply to him in his current position as [a senior official] of the I-95 Corridor Coalition ("Coalition").
Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") renders its opinion that the post-employment restrictions do not apply to him, as he is employed by an organization that is governmental in nature. Public Officers Law §73(8)(e), which excepts government employees from the post-employment restrictions, is applicable to him.
[The requesting individual] was an employee of the Authority from [date] until his retirement on [ ] 1997. His last position at the Authority was [job title]. In that position, his primary responsibility was to direct [various] functions, which included [ ]. During approximately the last 18 months of his State service, he directed the [ ] function, serving as Chair of the Authority's [ ] Committee. This committee was comprised of the program managers from various internal Authority departments. Its role was to recommend [ ] projects and/or policies to the Executive Director and, in some cases, to the Board. He also served on a number of external committees, including, for approximately the last 18-24 months of his State service, the Steering Committee of the Coalition.
After he announced his retirement but before he actually retired, the then-[senior official] of the Coalition announced her retirement, effective in [ ] 1998. After discussions with the Authority's legal staff, [the requesting individual] decided to apply for the position. He was selected to serve on a consulting basis, effective [two months after retirement.]
The Coalition is an unusual entity. It is described in its brochures as "a regional partnership of transportation agencies, bringing its members together to address ITS solutions to shared transportation problems and challenges." The Coalition began as an informal group of transportation professionals working toward coordinated incident management. The geographic boundaries of the 12 states through which I-95 passes made implementation of ITS difficult without a coordinating body. Recognizing this need, the United States Department of Transportation named the region a Priority Corridor in 1991. This led to a mandate for the creation of a partnership of agencies throughout the region to move toward the ideal of having a seamless transportation system. As a result, the Coalition was established in 1993.
The Coalition has 27 voting members -- the departments of transportation of 13 states and the District of Columbia, and 13 public authorities, including the New York State Thruway Authority. All of its voting members are governmental entities. It also has 16 affiliate members without voting power. These include the Federal Highway, Railroad and Transit Administrations, the Coalition of Northeastern Governors, and the National Private Truck Council, among others.
The Coalition is a voluntary, unincorporated association that does not exist as a legal entity; its existence is through the goodwill of the member states. With the Priority Corridor designation, the Coalition receives federal funding for support of its projects and programs. The federal funds that are intended for the Coalition's activities are distributed through various member state departments of transportation for the conduct of specific projects or to hire consulting assistance as may be required. For example, with respect to [the requesting individual's] arrangement, the State of Virginia receives funds through a partnership agreement with the federal government, which funds support his contract with the Coalition.
Because the federal government executes these partnership agreements only with state departments of transportation, the Authority cannot be a direct recipient of federal funds. However, it could, in some cases, receive indirect federal funding for an I-95 related project through New York State Department of Transportation. For example, the Authority received two of the 52 work stations placed in member agency facilities as part of a network of computer terminals used for Corridor-wide dissemination of incident information.
As [a senior official] of the Coalition, [the requesting individual] reports to the Board, which provides policy direction and approves annual work plans. The Authority is one of 27 voting members of the Board, and is represented by its Executive Director. The Chief Executive of each member agency also appoints a staff member to represent the agency's interests on the Steering Committee. Action by the Board is taken upon the recommendation of the Steering Committee, but no action is taken without a consensus of the Board. [The requesting individual's] role is to provide overall coordination of the various committees and oversight of the major consulting contracts on behalf of the Board and the Steering Committee. [The requesting individual] is assisted by two staff members -- one on loan from the New York State Department of Transportation and another from the Port Authority of New York and New Jersey. An agreement with Massachusetts for the loan of a third staff member is currently being considered.
The post-employment restrictions applicable to former State employees are found in Public Officers Law §73(8)(a), which provides as follows:
(i) 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.
(ii) 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 or she personally participated during the period of his or her service or employment, or which was under his or her active consideration.
Subparagraph (i), known as the "two year bar," prohibits former State officers and employees from appearing, practicing or rendering services for compensation in relation to any case, proceeding, application or other matter before their former agency for two years following their separation from State service.
Subparagraph (ii), the "lifetime bar," prohibits a former State employee from appearing, practicing, communicating or otherwise rendering services in relation to any case, proceeding, application or transaction with respect to which the former employee was directly concerned and in which he or she personally participated or which was under his or her active consideration while in State service.
Paragraph (e) of §73(8), known as the government-to-government exception, provides as follows:
This subdivision shall not apply to any appearance, practice, communication or rendition of services before any state agency, or either house of the legislature, or to the receipt of compensation for any such services, rendered by a former state officer or employee . . . which is made while carrying out official duties as an elected official or employee of a federal, state or local government or one of its agencies.
This exception exempts a former State employee from the two year and lifetime bars when carrying out official duties as an elected official or an employee of a government or one of its agencies.
Paragraph (e) of §73 was not included when the current revolving door restrictions were enacted as part of the Ethics in Government Act of 1987.(1) In Advisory Opinion No. 89-5, the Commission was faced with the question how the revolving door restrictions, quoted above, were to be applied to a former State employee who, after leaving State service, was serving in another governmental capacity. The Commission, citing prior opinions of the Attorney General, noted that "in both situations, the 'client' is the same: the public at large." Thus, "[t]he evil to be avoided the misuse of knowledge and contacts to the benefit of a private client would not be a possibility." The Commission held that "[t]here would be no benefit to the public if a former State employee, serving the citizens of this State in another public employment capacity, as a local government employee, were precluded from appearing or practicing before his or her former State agency." It concluded that "[a]pplication of §73(8) is triggered when a State officer or employee leaves the State (or 'public' service), and joins the non-governmental (or 'private') sector."
The Commission urged that this conclusion be codified. Upon receiving the Commission's proposal, the Legislature added paragraph (e) to §73(8).(2)
The Commission has issued several advisory opinions interpreting this paragraph, but the opinion most closely on point is Advisory Opinion No. 96-16. There, the Commission held that the government-to-government exception covers employees of the New England Interstate Water Pollution Control Commission ("NEIWPCC"). This is an interstate commission established by a compact entered into by the states of New York, Massachusetts, Maine, Vermont, New Hampshire, Connecticut and Rhode Island for the purpose of controlling and abating the pollution of waterways common to New York and the New England states. It has five Commissioners from each signatory state who are chosen in the manner provided by the laws of each of the respective states. For each state, there must be a member representing the State Health Department, one representing the state water pollution control board (if existent), and other members who are representative of municipal interests, industrial interests and an agency acting for fisheries or conservation.
NEIWPCC is a federally recognized instrumentality which receives its base funding through §106 of the Clean Water Act. It is subject to 40 CFR Part 31, which provides for Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, and it must follow the guidance set forth in the Office of Management and Budget's Circular A-128, which applies to state and local governments receiving federal aid. It is also subject to audit by that office.
The Commission, in Advisory Opinion No. 96-16, noted that NEIWPCC has been granted authority to exercise sovereign power. It imposes classifications of interstate waterways upon the signatory states and mandates that the states work to meet the standards required by such classifications. By entering into the compact, New York, through the Legislature, bound itself to meet those requirements. Furthermore, NEIWPCC is subject to regulatory authority, as it must comply with governing federal regulations and is subject to audit by the Office of Management and Budget. Looking at these factors, the Commission concluded NEIWPCC employees could be equated to government employees, and the government-to-government exception was applicable to them.
With this opinion in mind, the Commission must examine the Coalition of which [the requesting individual] serves as [a senior official]. It has a structure that may be unique. It can best be described as an organization created by agencies of various State governments that have developed a formal structure, such as the creation of a Board of Directors and a Steering Committee, to adopt policies, and to receive and spend federal funds in furtherance of its purposes. Clearly, this organization has many governmental characteristics. All of its voting members are government agencies; its staff is paid with government funds and, aside from its executive director, all are on loan from governmental agencies; it develops public policy and spends government funds to implement that policy; and its expenditures are made through government agencies.
The Coalition, however, differs from NEIWPCC in certain respects. It does not exercise sovereign power, nor has the Legislature bound New York to follow its dictates. In addition, the Coalition has a few non-governmental members, although they have no voting power.
Looking at all of the factors, the Commission concludes that the Coalition is governmental in nature. No one factor is decisive, but the Coalition's role as an entity to develop public policy in the field of transportation and to implement that policy through the expenditure of public funds is important. It, in essence, does no more than what each of its governmental members could do acting separately. By serving as a vehicle whereby these members can coordinate their efforts, it makes them more efficient. Seen from this perspective, it is a public entity, and its employees should be covered by the government-to-government exception, permitting them to effectively carry out their responsibilities.
Since the Coalition is governmental in nature, the government-to-government exception of Public Officers Law §73(8)(e) covers its employees. Consequently, [the requesting individual], as [a senior official] of the Coalition, is not subject to the two year or lifetime post-employment restrictions.
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. Chap. 813, Laws of 1987.
2. Chap. 242, Laws of 1989.