| Advisory Opinion No. 03-4: |
Whether the “former agency” of [a senior official at] a State agency
includes its parent agency or other affiliated agencies for purposes of applying
the post-employment restrictions of Public Officers Law §73(8)(a)(i). |
INTRODUCTION
The following advisory opinion is issued in response to a request submitted
by the former [senior official] of the Long Island Railroad (“LIRR”),
who asks how the restrictions of the Public Officers Law would affect his ability
to work for a private entity after his retirement. To answer this question,
the Commission must decide whether the two-year bar of the Public Officers Law
§73(8)(a)(i) would preclude his appearing, practicing or rendering services
for compensation before the LIRR only, or whether it should extend to its parent
agency, the Metropolitan Transportation Authority (“MTA”) or the
MTA’s other affiliated agencies.
Pursuant to its authority under Executive Law §94(15), the New York State
Ethics Commission (“Commission”) concludes that [the requesting
individual’s] former agency for purposes of the two-year bar includes
the LIRR and the MTA, but does not extend to the MTA’s affiliated agencies
and subsidiaries.
BACKGROUND
The question of which agency or agencies are [the requesting individual’s]
“former agency” is not a simple one because of the LIRR’s
relationship with its parent agency, the MTA, and the LIRR’s collaboration
with other MTA affiliated agencies on various issues and projects. 1
On [date], [the requesting individual] retired from the LIRR having held the
title of [a senior official] for three years; prior to that he was [a senior
official in another job title]. As [a senior official], he was responsible for
all managerial aspects of the company, including the operation of 770 trains
per day. There is no question that the LIRR is his former agency for the purposes
of the Public Officers Law.
Due to pension considerations, [the requesting individual] was placed on the
payroll of the MTA during his tenure at the LIRR. While his job responsibilities
related primarily to the LIRR, he had responsibilities to the MTA in two areas:
(1) he was [ ] of the All-Agency Deferred Compensation (401K and 457) Plan,
and (2) he was [ ]for the Excess Liability Fund (an all-agency excess liability
fund).
As [a senior official] of the LIRR, [the requesting individual] oversaw major
capital programs that involved working with affiliated agencies. For example,
he was involved in the planning and construction of the East Side Access project,
which will connect LIRR trains to Metro-North Commuter Railroad’s (“Metro-North”)
base at Grand Central Station. He also participated in the planning of the renovation
of the Atlantic Terminal, a project shared with the New York City Transit Authority
(“TA”). This project involved joint funding and project management
coordination between the LIRR and the TA for its design and construction. The
LIRR also shares capital programs with other affiliated agencies, such as the
purchase of ticket vending machines with Metro-North.
In addition, last year, the Chairman of the MTA announced a restructuring plan
that would merge various affiliated agencies into five distinct companies under
the MTA in an effort to cut costs and streamline operations. Part of the plan,
which requires legislative approval, calls for the LIRR and Metro-North to become
one entity, known as the MTA Railroad.
[The requesting individual] has accepted a position as [a senior official] for
[ ], a private company which provides construction, maintenance and material
solutions for the rail and rail-transit industries. [The private company] has
two main business units:[ ]. [The private company] offers its products to private
industries, public transit authorities, and railroads of all sizes. As [a senior
official], [the requesting individual] will be responsible for all budgeting,
treasury, and financial operations at [the private company] and its subsidiaries.
He will also oversee information systems and internal auditing, and will be
reporting to the [a senior official] and Chief Operating Officer. [The private
company] conducts considerable business with the TA. Its subsidiary, [ ], has
been involved since [date] with the [ ] Project which will centralize dispatch
and train control functions for the TA.
Given [the requesting individual’s] responsibilities to the MTA and the
LIRR’s involvement with the MTA’s affiliates and subsidiaries, the
issue before the Commission is whether, in addition to the LIRR, the MTA or
its affiliates and subsidiaries are [the requesting individual’s] former
agencies for application of the two-year bar.
APPLICABLE STATUTES
The statutory language setting forth the two-year bar is found in Public Officers
Law §73(8)(a)(i), which states:
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.
The lifetime bar contained in Public Officers Law §73(8)(a)(ii) states:
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.
DISCUSSION
These above restrictions set the ground rules for what individuals may do with
the knowledge, experience and contacts gained from public service after they
leave their employment with a State agency. 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. A second provision, known as the “lifetime bar,” prohibits
former State officers and employees from appearing, practicing, communicating
or rendering services before any State agency for compensation in relation to
any case, proceeding, application or transaction with respect to which they
were directly concerned and in which they personally participated during the
period of their State service, or which was under their active consideration
during that period.
Public Officers Law §73(8)(a)(i) bars an employee who leaves State government
from engaging in specified activities before his or her former agency or agencies
for a two-year period. Generally, an individual has only one former agency,
but the Commission has, in prior opinions, concluded that under certain circumstances,
an employee may have more than one former agency (see, e.g., Advisory Opinion
Nos. 90-22 and 90-12).
For example, in Advisory Opinion No. 95-19, the Commission considered the matter
of a State agency head who, during two and a half years of his period of service
at the agency, provided, on a regular basis, assistance to the Governor on issues
unrelated to the agency. He was neither paid by the Executive Chamber for his
work nor was he appointed to an Executive Chamber position or title. Based on
the level of responsibility exercised by the individual, his regular and continuing
responsibility working for the Governor and the duration of the assignment,
the Commission concluded that one of the individual’s former agencies
was the Executive Chamber. It noted that the revolving door restrictions apply
when it can be shown that there is a “continuing service” to a State
agency, even where the employee is not compensated by the agency.
In Advisory Opinion No. 95-33, the Commission considered whether officers and
employees of the MTA should be considered employees of only the MTA or, alternatively,
all of the MTA’s affiliated agencies for purposes of determining their
former agency. The Commission held that for other than certain “senior”
employees, the former agency of the MTA employees would be the MTA only.2
For senior employees, the Commission held that, “[t]he heads of the MTA’s
11 departments and the directors who are their immediate subordinates, whose
current responsibilities include actively and routinely managing significant
projects or matters involving one or more MTA affiliates or subsidiaries may
be considered to be an employee of the MTA and the other MTA entity. This determination
shall be made on a case-by-case basis.”3
In Advisory Opinion No. 99-1, the former agency of a senior MTA employee who
had significant involvement with the capital programs of the TA would be the
MTA and the TA, given the individual’s job responsibilities.
Applying these precedents to [the requesting individual’s] case and noting
that he served as [ ] of the MTA’s All-Agency Deferred Compensation Plan
and Lead Trustee for the MTA’s Excess Liability Fund, the Commission finds
that [the requesting individual] provided “continuing service” to
the MTA on a significant and regular basis, and therefore, the MTA, in addition
to the LIRR, is one of his former agencies for purposes of the two-year bar.
Concerning the other MTA affiliated agencies, the Commission notes that [the
requesting individual] from time-to-time, in his duties as [a senior official]
for the LIRR, was involved with various projects and had intermittent contact
with these entities. For example, the Atlantic Terminal project was shared with
the TA, and [the requesting individual] was involved in its planning and the
renovation. In addition, the East Side Access project involved the coordination
of activities among the LIRR, Metro-North, and the TA at Grand Central Station.
The Commission is also aware that the LIRR and Metro-North have been involved
in joint procurements during [the requesting individual’s] tenure with
the LIRR, and that the pending restructuring plan will merge these two entities.
Notwithstanding the above, the Commission finds that [the requesting individual’s]
involvement in these projects does not rise to the level of “continuing
service” to a State agency to warrant a finding that the post-employment
restrictions extend to the affiliates. Rather, periodically and on a limited
basis, [the requesting individual] worked on joint projects with some of the
affiliates in his capacity as [a senior official] of the LIRR to ensure that
the LIRR could effectively meet commuter needs and improve mass transit in and
around New York City. [The requesting individual’s] collaboration on occasional
projects with the various affiliates was beneficial to the success of the joint
projects, served the affiliates’ mutual interests, and thus should not
be viewed as providing a “continuing service” to the affiliates.
His involvement was sporadic and was to further the interests of the LIRR. Moreover,
there is nothing to indicate that [the requesting individual] was involved with
each of the MTA’s affiliated agencies. In fact, it does not appear that
he was ever significantly involved with the MTA’s Bridges and Tunnels
or the Metropolitan Suburban Bus Authority.
Based on his functions and responsibilities as [a senior official] of the LIRR
and his service as [ ] of the All-Agency Deferred Compensation Plan and [ ]
for the Excess Liability Fund, the Commission concludes that the LIRR and the
MTA are [the requesting individual’s] former agencies for purposes of
the Public Officers Law §73(8)(a)(i) but not the MTA’s affiliated
agencies.
Accordingly, the post-employment restrictions of §73(8)(a)(i) prohibit
[the requesting individual] from appearing or practicing before the LIRR and
the MTA, or from rendering services for compensation in any matter before these
entities until [date]. This means, for example, that for the next two years
he may not call the LIRR or the MTA to lobby for future contracts; influence
any decision or even discuss projects, regardless of whether or not he is compensated.
It also means that he may not, on behalf of [the private company], render services
for compensation on a matter before the LIRR or the MTA.
[The requesting individual] should further note that the element of “appearing
or practicing” has been interpreted to encompass efforts to influence
a decision of his former agency or to gain information that is not generally
available to the public (see, Advisory Opinion No. 99-17). Due to the stature
and profile of his prior position, he should always be extremely careful regarding
contacts with the LIRR and the MTA. Additionally, he is prohibited from preparing
work he has reason to know or anticipate, through law, regulation or policy,
will be referred to his former agencies (see, Advisory Opinion Nos. 90-21 and
97-15). Notwithstanding the above, he may appear, practice or render services
for compensation before other State agencies, including the MTA affiliated agencies,
during the two year post-employment period without violating §73(8)(a)(i).4
CONCLUSION
The Commission concludes that [the requesting individual’s] former agencies
for purposes of the two-year bar under Public Officers Law §73(8)(a)(i)
include the LIRR and the MTA.
This opinion, unless and until 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.
All Concur:
Paul Shechtman, Chair
Robert J. Giuffra, Jr.
Carl H. Loewenson, Jr.
O. Peter Sherwood, Members
Dated: April 10, 2003
Endnotes
1 The other affiliated agencies of the MTA
include the Triborough Bridge and Tunnel Authority (MTA Bridges and Tunnels),
New York City Transit Authority, Metropolitan Suburban Bus Authority, and Metro-North
Commuter Railroad.
2 In Advisory Opinion
No. 95-33, the Commission addressed only the issue of the former agency of certain
senior MTA employees; it did not address the issue concerning the chief executive
officers of the affiliated agencies.
3 One factor that the Commission
considered in reaching its conclusion is that the MTA board of directors is
also the ex-officio board of directors of each of the affiliated agencies, including
the LIRR.
4 [The requesting individual]
is reminded of the provisions contained in the lifetime bar, which prohibits
him from working on any case, proceeding, application or transaction in which
he was directly concerned, personally participated or which was under his active
consideration while in State service. Thus, for example, the lifetime bar would
preclude him from working on the East Side Access project or the renovation
of the Atlantic Terminal on behalf of [the private company] or any other potential
employer.