LEAVING STATE SERVICE
A SUMMARY OF FORMAL ADVISORY OPINIONS ADDRESSING THE POST-EMPLOYMENT RESTRICTIONS PUBLIC OFFICERS LAW §73(8)
NYS Commission on Public Integrity540 Broadway
Albany, New York 12207
February 2007
LEAVING STATE SERVICE -- THE REVOLVING DOOR RESTRICTIONS
POST-EMPLOYMENT RESTRICTIONS
Public Officers Law §73(8)
I. GENERAL ISSUES
A. Introduction
The post-employment restrictions are found in Public Officers Law §73(8)(a) and consist of a two year bar and a lifetime bar. They apply to virtually all State officers and employees including employees of State agencies, State public benefit corporations and authorities, the State University of New York ("SUNY") and the City University of New York ("CUNY").
The fundamental concept of the two year bar is a prohibition on a former employee’s appearing, practicing or rendering compensated services on any matter before his or her former agency. The specific matter is irrelevant; the central question is whether it is before the former agency.
For the lifetime bar, the agency is irrelevant. The central question is whether the case, proceeding, application or transaction is one on which the former employee worked while in State service. If it is, there is a lifetime bar. The most difficult issue in determining whether the lifetime bar applies is determining whether the "transaction" on which the former employee is working is the same as one on which he or she worked while in State service.
B. Who is a "State officer or employee" for §73(8) purposes?
The revolving door restrictions apply to all former State officers and employees without regard to level of responsibility or exercise of discretion. [AO 91-17] All former employees, regardless of position, function, status or bargaining unit, are covered. This includes seasonal and temporary employees. [AO 94-4] One does not need to be designated a policymaker to be covered.
By statute, however, non-paid or per diem members of boards, commissions, councils, public authorities and public benefit corporations are not deemed State officers or employees for purposes of the revolving door, and are not subject to its provisions. Nevertheless, many of these entities have adopted codes of conduct which may include comparable post-employment restrictions.
Employees on leave without pay or on employee organization leave remain State employees and are subject to the Ethics Law provisions applicable to current employees. The post-employment restrictions do not apply to them until their employment leave on is terminated. See Murphy v. New York State Commission below [AO 90-1] Their two year period begins with such termination.
Students (as defined) are not "employees" for purposes of the post-employment restrictions and are not subject to either the two year bar or the lifetime bar. [See AO 91-1 for specific requirements on what conditions must be met to qualify for student status]
Graduate assistants or teaching assistants at SUNY who hold State-funded positions who are covered under the Taylor Law and who terminate State service on or after October 26, 1992, are covered by §73(8). [AO 92-21]
Members of county and NYC alcoholic beverage control boards are not State officers or employees subject to §73(8). [AO 93-1]
It is an individual’s relationship with the State agency, not the amount of direct State compensation received, that will determine whether an individual is a covered State employee. [AO 93-7]
II. THE TWO YEAR BAR
A. Text of the Statute [Public Officers Law §73(8)(a)(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.
B. When is the termination date?
The date of termination is the last date on the payroll; receipt of "lagged" paychecks or payment for unused leave accruals do not extend the period "on the payroll" because they involve payment for previously rendered services or accrued benefits. [AO 91-12]
The two year period for a former employee who was suspended without pay nine months before he retired, and who was subsequently awarded back pay and benefits through the date of his retirement, begins to run from the date of his retirement, not his suspension. [AO 03-3] [see also, Matter of Murphy v New York State Ethics Commission, Supreme Court, Albany County, July 31, 2003, Kavanagh, J.]
C. What is the former agency of a former officer or employee?
Generally, an individual has only one former State agency for purposes of the two year bar. However, in an instance presented to the Commission, an employee of agency 1 was assigned to work as an administrator to agency 2 for eleven years as a significant and regular assignment. Even though his service to agency 2 was uncompensated, the Commission held that it is a former agency for §73(8) purposes. Agency 1 was also a former agency [AO 90-22].
For an employee on leave of absence from agency 1, who terminates from agency 2, the former agency for §73(8) purposes is both agency 1 and 2; the option to return to a position vacated by a leave of absence continues the employment with agency 1. [AO 90-12]
Some
State officials hold positions on boards, commissions, etc. Whether the
board and the agency are separate for purposes of the two year bar is
decided on a case-by-case basis and depends on several factors. For
example: there may be entities to which the official is not expected to
devote significant time or effort; a body without bonding authority may
not be as closely connected to the State; sitting as a non-voting
member entails less responsibility; and designation of a deputy is a
factor to be weighed. However, the Commissioner for the Division of
Housing and Community Renewal ("DHCR") who also served ex officio on
the Housing Finance Authority ("HFA") and a State Council, had all 3
agencies as her former agencies for purposes of the two year bar. [AO 96-20; contrast AO 89-3 which involved an Assistant Counsel to the Governor rather than an agency head sitting ex officio]
The former agency of an employee of the Department of Taxation and
Finance is the Department of Taxation and Finance, which does not
include the Division of Tax Appeals. [AO 90-18]
The Office of Alcohol and Substance Abuse Services ("OASAS") is the former agency of both former Division of Alcoholism and Alcohol Abuse and Division of Substance Abuse Services employees. [AO 93-11]
The former agency of a Liquidation Bureau employee is the Liquidation Bureau, which does not include the State Insurance Department. [AO 95-1]
A Labor Management Committee is the only former agency of the individuals it employs. [AO 95-3]
The former agency of employees of the Uninsured Employers’ Fund is the Workers’ Compensation Board. [AO 00-5] The regional offices of the Workers’ Compensation Board are not separate from the Central Office. [AO 99-16]
A former employee of one of the colleges within SUNY may appear before any of the colleges within SUNY other than the one at which he or she served. The opinion does not address whether the former employee may appear before SUNY central administration. [AO 95-42] [See also 06-5 for a determination of the former agency of a former employee who served with the Student Information and Campus Administrative System Center ("SICAS") at Suny Oneonta]
The Unemployment Insurance Appeals Board is within the Department of Labor, so that a former employee of the Department of Labor may not appear or render services before the Unemployment Insurance Appeals Board. [AO 95-20]
The former agency of a former employee of Housing Finance Agency ("HFA") who was assigned to provide services for Medical Care Facilities Finance Agency ("MCFFA") is HFA and the Dormitory Authority ("DA"), into which MCFFA has been consolidated, but as to the DA, he may not appear, practice or render services for compensation in relation to any matter which was within the authority of MCFFA prior to consolidation. [AO 96-7]
Where the Medicaid Unit of the Department of Social Services ("DDS") was transferred to a new unit within the Department of Health ("DOH"), the former agency of a Medicaid Unit employee is both DSS and the new unit in DOH. [AO 97-1]
Similarly, a former DSS employee who served as its Assistant Commissioner and was later transferred to Office of Children and Family Services, has as his former agency DSS and those entities to which DSS functions were transferred, namely: Office of Children and Family Services, Office of Temporary and Disability Assistance and certain units within DOH and the Department of Labor. [AO 98-6]
A former Department of Transportation ("DOT") employee may appear before Metropolitan Planning Organizations ("MPO"), except the NYC MPO because DOT is its host agency. [AO 99-9]
A former employee of the Office of Temporary Disability Assistance ("OTDA") also has as his former agency a public benefit corporation staffed by OTDA, the Homeless Housing Assistance Corporation ("HHAC"). [AO 03-7]
The determination of a former agency for employees of Department of Economic Development ("DED") and Urban Development Corporation ("UDC") d/b/a Empire State Development Corporation ("ESDC") must be made on a case by case basis. [AO 02-2]
In the case of the Metropolitan Transportation Authority ("MTA") and its affiliated agencies (NYC Transit Authority, Long Island Rail Road, Metro-North, MTA Bridges and Tunnels), an employee may have more than one former agency. [AO 95-33] The former agency of a senior MTA employee who worked on the capital programs of the NYC Transit Authority would be the MTA and the NYCTA. [AO 99-1] The former agency of a senior LIRR official includes LIRR and the MTA but not MTA’s affiliated agencies and subsidiaries. [AO 03-4] Each situation must be evaluated on its own merits and circumstances.
D. A former officer or employee may not "appear or practice" before his or her former agency
1. Situations in which the Commission has found prohibited appearances
a. In general
Negotiating contracts, participating in field audits, and representing a client in reviews by the former agency are barred. [AO 90-4]
Writing, preparing or submitting grant proposals to the former agency is barred.
[AO 90-21; AO 97-15]
Engaging in settlement discussions with the former agency is barred. [AO 95-28]
Submitting periodic status reports, final report of findings and billing invoices to the former agency is barred. [AO 91-9]
Submitting a resume to the former agency for approval to work on a bid project is barred. [AO 91-17]
Working on an application or proposal to be submitted to the former agency, or having a role in negotiating the terms of an application or proposal, or having his or her name appear on any document submitted to the former agency is barred. [AO 90-3]
Participating as a party, whether or not for compensation, in any administrative proceeding before the former State agency is barred. [AO 93-18]
b. Freedom of Information/Agency information
Making a Freedom of Information Law request on behalf of a client is barred; however, a former employee may make a FOIL request on his or her own behalf. [AO 89-7, AO 97-12, AO 04-6] [Contrast AO 04-5]
Calling the former agency to seek guidance on how it would apply a regulation in the future, if the agency would not generally provide such information, is barred. [AO 99-17]
Contacting key personnel to collect data from the former agency. [AO 04-6]
Contrast: A former employee may view monthly price schedules which are, by statute, available for public inspection, where the schedules are kept in the public waiting area of his former agency’s office and it is not necessary to file a FOIL request or otherwise seek permission to view them. [AO 04-5]
Calling the former agency to ask questions on behalf of an insured, such as why a claimant is not being paid, is barred. [AO 94-5]
c. Contracts
Submitting a contract proposal is barred. [AO 89-9]
Overseeing a contract between an entity and the former agency is barred. [AO 99-13]
Contracting with one’s former agency during the two year post-employment period is barred. [AO 94-21, AO 03-7]
[Note: Legislation in 2004 created a new subdivision 8-b which allows, in limited circumstances, for exceptions to this prohibition when, among other things, the agency head certifies in writing that a former employee has unique expertise which is otherwise unavailable at a comparable cost and the Commission approves such certification. See Section IV of this outline.]
[Note: See Section II. F.4 concerning rendering services under a contract with the former agency.]
d. Certifications/licenses
Applying for an initial license or certificate where the application review and on-site inspection of the business premises, prior to approval, and oversight of the business following approval is conducted by former colleagues at the former agency [AO 98-1] or where the former agency actively regulates the business and exercises substantial discretion when reviewing and approving the license application, is barred. [AO 98-3]
e. Work before other than the former State agency
If the former employee has reason to know or anticipate, through a law, regulation or policy, that his or her private sector work will be referred by one State agency to the former agency, he or she is barred from submitting so much of the work as will be referred, as it would constitute an appearance. [AO 89-8] [For application of this principle, see AO 94-6. See also AO 99-3 and AO 03-8 which involves investigations.]
A former employee may not perform services for a private entity which is funded by the former agency if the agency has a role in approving the hiring of the former employee, or if the former employee’s work product, pursuant to contract or regulation, is submitted to or approved by the former agency. [AO 90-21] These activities would require a prohibited appearance.
2. Situations in which the Commission has not found prohibited appearances
a. General information and agency solicitation
A former employee may prepare a general report to be used by potential funding applicants to his or her former agency provided that it is not tied to a specific application. [AO 90-3]
Providing general information on the requirements of the former agency, unrelated to a specific case, is permissible [AO 90-4]; as are services which do not involve specific advice or participation in the preparation of an application to be submitted to the former agency. [AO 90-3]
Also, unpaid services performed by a former employee at the request of the State and for the benefit of the State are not construed as an appearance before a State agency. [AO 93-13]
b. Certifications and licenses
Office of Mental Retardation and Developmental Disabilities ("OMRDD") employees who are certified as family care providers while in State service may continue to so serve after terminating their State employment. [AO 94-1]
A former employee who holds a professional license may renew that license issued by the former agency within the two year period. [AO 94-2]
A former Department of Transportation ("DOT") employee may apply to DOT for Minority Business Enterprise certification because DOT is acting as an agent of the federal government and performing a federal function. [AO 95-23]
c. Subpoenas
A former employee who appears before her former agency in compliance with a properly issued subpoena is not in violation of the two year bar. [AO 94-19] However, her compelled testimony may reveal information that she has violated the revolving door statute.
d. Training
A former employee who teaches courses his former agency is required by statute to provide is not appearing or rendering services before his former agency where another State agency specifies the course content and certifies course instructors and where the former employee is retained by a private association and paid from non-agency funds. [AO 97-13]
e. Pass-through funds
A former employee may be paid from funds received from a legislative appropriation to a private entity which is passed through his former agency, where the former agency has no discretion or control, oversight, approval or input into the selection of the employees of the private entity and where the former employee does no work on any application or proposal to the former agency. The former employee’s name appearing on a payroll voucher is not, in and of itself, a prohibited appearance. [AO 90-3]
A former employee may be paid pursuant to a contract between his or her former agency and the new employer as long as the former agency has no role in approving his or her hiring and the former employee’s work is not submitted to or approved by the former agency. [AO 01-3]
f. Clinical/medical services
Former OMRDD employees may perform medical or clinical services in their private practices for those OMRDD clients who reside in community facilities licensed but not operated by OMRDD should OMRDD initiate contact to inquire about the status of a client in a community (non-OMRDD) facility, the former employee may not bill for their time. [AO 94-15; See also AO 03-1]. [Note: Legislation in 2004 created a new subdivision 8-b which allows former health care professionals to provide treatment at the facility at which they were employed while in State service to individuals who were in their care prior to leaving State service. See Section IV of this outline.]
g. Public information
A former employee may attend public hearings held by the former agency and receive mailings consisting of documents filed in a matter if members of the public can attend and receive the same. [AO 93-18] [See also AO 99-3]
A former DOT employee may request a copy of a TIP (Transportation Improvement Program) from the NYC Metropolitan Transportation Organization (equated with DOT) because it is a public document and may be released without any discretion by the Organization. [AO 99-9]
A former State Liquor Authority ("SLA") employee may view monthly price schedules which are, by statute, available for public inspection, where the schedules are kept in the public waiting area of the SLA offices and it is not necessary to file a FOIL request or otherwise seek agency permission to view them. [AO 04-5]
Contrast: The filing of a FOIL request on behalf of another individual is barred [AO 89-7, 97-4], as is contacting key personnel to collect data from the former agency [AO 04-6] or calling the former agency to seek guidance on how it would apply a regulation in the future if the agency would not generally provide such information. [AO 99-17]
h. Other permitted appearances
A former DSS employee now employed by a Medicaid provider may submit claims to a contractor retained by DSS to process such claims, as DSS reviews less than 1% of the claims submitted to the contractor. He would not, however, be able to submit claims that are subject to preview by DSS, nor may he participate should DSS, in reviewing a claim he has submitted to the contractor, seek further information from the claimant or provider. [AO 96-8]
E. A former officer or employee may not "receive compensation for any services rendered" on any matter before his or her former agency
1. Situations in which the Commission has found prohibited services
A
former employee cannot be paid for helping to develop an application
submitted to the former agency or for formalizing a plan for
influencing a decision of that agency.
[AO 99-17]
A former employee may not directly participate in a telephone call with his or her former agency where the call is placed by a colleague at the current place of employment. Moreover, instructing or advising the colleague placing the call would constitute rendering services for compensation in relation to a matter before the former agency. [AO 97-1]
A
former Assistant Attorney General may not render services by preparing
an offering plan to be submitted to the Department of Law by another
attorney in his firm.
[AO 99-7]
The two year bar prohibits a former Department of Taxation and Finance employee from preparing State tax returns to be submitted to that agency within two years of separation. [AO 01-7]
2. Situations in which the Commission has not found prohibited
services
A former OMRDD employee may provide direct care, as an employee of an entity licensed by his former agency, to individuals who do not reside in State-operated facilities; he will not prepare contracts or other materials for the entity to submit to OMRDD. [AO 99-14]
A former employee may work as a consultant to a State agency other than the former agency within the two year period. [AO 91-22]
A former employee may work for an entity which is licensed or regulated by his or her former agency so long as none of his or her work product is submitted to the former agency and he or she has no business contact with former colleagues. [AO 90-11]
Mere entry of data provided by others into a computer program which will generate forms to be submitted to former agency does not constitute rendering services within the two year bar as the former employee is merely a "conduit of information", not contributing anything original. [AO 00-4]
F. A former officer or employee may not appear, practice or receive compensation for services rendered in relation to "any case proceeding or application or other matter" before his or her former agency
1. What is included in "case, proceeding, application or other matter"?
When an agency awards a contract, promulgates a regulation or adjudicates a claim, there is a matter before the agency. [AO 99-17] Once a contract is awarded, the contract itself is not a matter before the agency. Any attempt, however, to modify the contract, to seek an interpretation of the contract, or to influence a decision of the former agency would be a matter. [See Section II. F.4 below concerning rendering services under a contract with the former agency.]
2. When is a case, proceeding, application or other matter "before" an agency?
a. "Back room" services
The post-employment restrictions affect not only appearances, but also
prohibit "back room" services rendered on a matter before a former
agency for which a former employee is paid; it does not matter that the
former agency does not know that the former employee is working on the
matter for there to be a finding of a violation. [AO 90-7]
b. Prior to submission
An application or contract proposal is under the jurisdiction of a particular agency at all times, whether or not the agency has received the documentation; work on an application "prior to submission" to a former agency is prohibited. It is before the agency, although not yet submitted. [AO 89-7]
c. Court actions
The two year bar does not preclude a former state employee from serving as an expert witness in a case involving his former agency once a court action has been commenced. [AO 01-4] However, the lifetime bar may apply.
A former employee may participate in the settlement of a State or federal court action even if settlement negotiations require direct contact with the former agency’s staff; the matter is before the court, not the agency. [AO 89-7, AO 01-4] However, a former employee may not appear before either his or her own former agency or the Attorney General’s office which represents the former agency if litigation has not yet been commenced. [AO 92-22]
d. Administrative proceedings
A former employee may appear in a proceeding pending before a different
agency in which his former agency is a party, but may not request
documents or engage in settlement or other discussions with his former
agency; he may subpoena documents from his former agency. [AO 95-28]
e. Other
It is of no significance that a former employee’s contact with his former agency occurs out-of-state; it is still a violation. [AO 91-6]
The provision of general accounting services to a client not currently under audit by a State agency is permissible, as there is nothing before the agency. However, the former employee must direct the client that his or her work product may not be submitted to the former agency within the two year period. [AO 90-18]
A former DOT employee may recruit from the private sector to hire inspectors for his firm’s contracts with DOT; this would not constitute rendering services for compensation on a matter before his former agency. [AO 95-22]
A former DOT employee may sell traffic signal equipment to governmental and private entities other than DOT, even if DOT inspects and approves the equipment or is the eventual user, as the sales services he renders are not "in relation to" a matter before his former agency. He may not, however, have any role in certifying that the signals meet DOT’s requirements. [AO 96-4]
When the Environmental Protection and Spill Compensation Fund, which is within the Department of Audit and Control ("Comptroller’s Office") , seeks to recoup the cost of an oil spill cleanup, the matter is before Department of Environmental Conservation ("DEC"), as well as before Audit and Control, because DEC, which was responsible for the cleanup, continues to play an active role in the State’s attempt to recover its costs. For revolving door purposes, the matter before DEC is concluded only when the Fund’s claim has been paid or abandoned. [AO 97-5]
The taking of an individual’s fingerprints where the prints are to be submitted to the former agency of the person taking the prints is not rendering services in relation to a matter before the agency. The taking of the prints will not be considered by the agency, although the prints will be part of the decision making process. [AO 97-15]
Where the NYC Department of Finance performs services for the Department of Taxation and Finance pursuant to a memorandum of understanding, a former State Tax Auditor is precluded from appearing or rendering services on behalf of a client before the NYC agency when his services involve the audits of returns conducted by NYC pursuant to the agreement with the Department. [AO 97-7]
A
former Assistant Attorney General may render services in connection
with SEC investigations of a securities firm as long as the
investigation is not a matter that comes before the AG; should the
investigation come before the AG, he must withdraw from the matter that
is before the AG or from matters that are jointly before the AG, the
SEC or any other jurisdiction. [AO 03-8]
3. Work before an agency by a firm or business entity of which a former officer or employee is a member or shareholder
a. Net revenues rule
Public Officers Law §73(10) provides that it is not a violation of law for a firm or business entity of which a former employee is a member, associate or shareholder to appear, practice, communicate or render services with the individual’s former agency, so long as the former employee does not share in the resulting net revenues. A detailed discussion of the application of the net revenues rule to salaried employees and non-salaried employees can be found in AO 90-14.
4. Work before an agency by a contractor or subcontractor of which a former officer or employee is an employee
Advisory Opinion No. 99-17
addressed whether a former DOT employee may render services for
compensation on a road construction project in which DOT had delegated
day-to-day administration of the contract to a municipality. The
Commission concluded that a "matter" involves an instance in which an
agency is in the process of rendering a decision that best advances its
mission in the public interest; e.g., awarding a contract, promulgating
a regulation or adjudicating a claim are matters before an agency. But
once a contract is awarded, the contract itself is not a matter before
the agency, and a former employee is not barred from working on it
merely because his former agency awarded it.
Specifically overturned in part by AO 99-17: a former State employee may not render services for compensation for a private entity pursuant to a contract with his or her former agency. [AO 94-4 ]
Implicitly overturned by AO 99-17: former employees may not work for private contractors on their former agency’s outsourcing contracts for two years after leaving the agency as they would be rendering services for compensation on a matter before their former agency. [AO 95-31]
Specifically upheld by AO 99-17:
a former employee may not prepare documents for a private firm when it
is reasonably foreseeable that the documents will be reviewed by her
former agency. [AO 97-5 ]
The individual who was the subject of Advisory Opinion No. 99-17 initially asked the Commission for permission to serve as a Project Manager
for a consultant on municipally administered highway improvement
contract. Because the position of Project Manager, as described,
involved meetings with DOT on substantive matters, the Commission
concluded that it was doubtful the individual could serve in that
position. The former DOT employee then asked permission to serve as a Construction Inspector for the same project, which was approved by the Commission in Advisory Opinion No. 99-17,
providing that he did not appear before DOT in a manner to influence a
decision of his former agency and did not prepare any reports that
would be submitted to DOT, and that any problems with the contract
would be referred to the former employee’s supervisor who would take
the issue to DOT.
The Commission has also held that a former DOT employee may serve as an Office Engineer where he would enter data into a software program that would generate reports and where he would report to the consultant’s resident engineer. [AO 00-04]
However, a former DOT employee may not work as an Office Engineer for a firm under contract with DOT where he would report to a DOT employee and would have substantial contact with DOT employees, or if the firm submits his name to DOT for approval. [AO 04-7]
The two year bar does not prohibit a former NYC Transit Authority ("TA") employee from working as a signalman under a contract between a private entity and the TA as long as any discussion regarding resolution of a problem in the field or other issue is referred to a foreman or project manager and the former TA employee does not otherwise violate the two year bar. [AO 01-5]
III. LIFETIME BAR
A. Text of the Statute [Public Officers Law §73(8)(a)(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."
The determination of whether the lifetime bar applies is one which must be made on a case-by-case basis. [AO 90-22]
B. What is a "case, proceeding, application or transaction"?
1. Instances in which the Commission has found the same "case, proceeding, application or transaction"
a. Legislation, Rules & Programs
Work on substantially the same issue may also be the same transaction, even when the form in which the issue is presented is not identical. [AO 92-20]
Bills introduced in the same or different legislative sessions may constitute the same transaction, particularly when they affect the same or substantially the same population and present the same issues. [AO 92-20]
Participation in rule-making and rate-setting is sufficiently similar to working on the enabling legislation so as to constitute a transaction which would trigger the lifetime bar. [AO 93-2]
Programs that affect the same or substantially the same population, provide the same or substantially the same services, and have the same goals are the same transaction for purposes of the lifetime bar even though funding sources and procedures are considerably different. [AO 94-9]
A former OMRDD employee may serve on a task force revising certain OMRDD regulations provided she does not work on the regulations she wrote while in State service and which remain in effect. The Commission considered six sets of regulations on which the former employee had worked; five had been substantially amended but one set remained intact and for which she was banned from working on pursuant to the lifetime bar. [AO 97-20]
b. Contracts
A former officer of a State agency who voted to approve a labor contract is barred from representing the same public employees’ organization on the new contract negotiations; the parties to the contract would be the same; the underlying contract is the one on which the former officer personally participated. [AO 92-7]
Change
in the scope and nature of a construction project does not render it a
different transaction from the one with which a former employee was
directly concerned and which he or she personally participated; the
essential nature of the transaction, the agencies involved, the
property to be reconstructed and the basic concept of reconstruction
did not change, and there was no significant break in project activity.
[AO 91-12]
Similarly, a former employee who worked on Stage I of a construction project, which stage was part of a larger project, cannot work on the later stages of the same project after leaving State service. It is all part of the same project. [AO 97-9]
A former employee may not render engineering services pursuant to a contract between his private employer and a municipality relating to the clean up of the municipality’s landfill where he had performed investigative services at an early stage while he was in State service; despite intervening events, including the passage of time, the progression from investigation to remediation and the issuance of a new consent order, the essence of the transaction remains the same. [AO 95-6]
Former Tax Department employees may work as consultants to their former agency after two years provided such services do not relate to any case, proceeding, application or transaction on which they worked. [AO 97-2]
A former OMRDD employee may not sell to his former agency, equipment to be used in connection with computers which were purchased based on the recommendation of a committee on which he sat as an OMRDD employee as he personally participated in the purchase transaction. [AO 97-23]
A former Division of Housing and Community Renewal ("DHCR") Commissioner may not serve as a consultant to a developer seeking funding from DHCR to build a second phase of a housing project where funding for the first phase was provided by DHCR when the Commissioner served and the second phase was contemplated at the time of the first. [AO 00-2]
A former employee of a State authority may not be involved in a subcontract to supply HVAC equipment to a supplier selected by the State authority in connection with a procurement for which he oversaw the development of technical specifications; it is of no consequence that the specification describes performance characteristics rather then specific technical requirements for the HVAC system. [AO 98-20]
c. Cases
A former employee may not make a compensated appearance before a federal court in a case arising out of a matter in which he was directly concerned and personally participated while in State service. [AO 95-5]
The lifetime bar prohibits a former State employee from serving as an expert witness in any case in which he was involved while employed by his former agency. [AO 01-4]
d. Proceedings
The lifetime bar prohibits a former employee from ever participating as a party in an administrative proceeding, whether or not for compensation, in a case in which he or she personally participated and was directly concerned. [AO 93-18]
A complex administrative proceeding that has been divided into several distinct phases is one "proceeding" for the purposes of the lifetime bar. A proceeding cannot be broken into a series of separate transactions. [AO 95-11]
A former employee who defended an agency’s determinations in court where the determinations were interim steps in an administrative proceeding is deemed to have participated in the administrative proceeding and is thus barred from future participation in that proceeding. [AO 95-16]
A former employee who participated in a utility’s rate proceeding may not appear with regard to a petition for a competition pilot program which the PSC has referred to the utility’s rate proceeding; the rate proceeding may not be subdivided so as to separate the petition from the other aspects of the proceeding, nor has the proceeding changed so materially as to be deemed a new proceeding. [AO 96-19]
e. Applications
A
former DEC employee may not appear or render services with respect to a
new application where the new application is so intertwined with other
applications on which he worked while in State service that it has
become part of a larger transaction.
[AO 96-17]
f. Other examples
A former Public Service Commission ("PSC") employee who was involved in efforts to create a new entity cannot serve as a member of that entity during its formative stage as this would constitute participation in the same transaction. [AO 98-19] See also, AO 99-15: the former PSC employee may be named as a member of the entity because it has evolved from the formative to the operational stage; operation of the entity is not the transaction on which he worked.
Real estate appraisals of the same parcel conducted at different times will, in most cases, constitute the same transaction. [AO 96-23]
2. Instances in which the Commission has not found the same "case, application, proceeding or transaction"
a. Methodologies, statistical & numeric data
Development of a non-confidential methodology by a State employee does not act as a lifetime barred transaction and prevent the employee from applying that methodology to uses other than those to which he applied them while in State service. [AO 94-9]
Knowledge and methodologies developed while an individual was in State service may be applied in new settings after the individual has left State service. [AO 94-18]
A former OMRDD employee who was responsible for setting the agency’s reimbursement rates for providers of services may challenge application of the rates in a new situation; the application of the rates in a particular situation is not the same transaction as the promulgation of the rates. [AO 03-2]
Cost trending indices submitted to Office of Real Property Services biannually do not modify existing indices and are not dependent on any previous index, but rather are completely recalculated; therefore, each is a new transaction. [AO 95-15]
A former employee who developed a State agency’s federally required cost allocation plan may contract with a State agency to develop a new cost allocation plan: because of significant changes in the federal requirements for the plan, the underlying considerations would be considerably different from those of the previous plan and thus the two plans would not be the same transaction. [AO 96-25]
b. Contracts
A
former Lottery employee may work for a contractor on a Lottery project
as the 1999 RFP is a different transaction from the 1985 RFP on which
the employee had worked. [AO 99-10]
A former DOT employee may work for a subcontractor to a company
responding to a DOT RFP on road weather information systems because the
RFP vastly changed in scope, because of technological advancements, and
because new federal guidelines have been established; the transaction
is different. [AO 99-6]
A former employee of Metropolitan Transportation Authority ("MTA") Transit Authority ("TA") who worked on TA’s automated fare card system (Metrocard) was not precluded from working on a proposal to link PATH’s anticipated contactless card system with Metrocard, as the two are separate transactions. The former employee’s PATH work could be limited, however, if an issue arises which rests on his prior Metrocard involvement. [AO 02-1] He was, however, precluded from working on upgrades to Metrocard.
A former LIRR employee is not barred from submitting a proposal to his former agency concerning upgrades to a fleet of locomotives that the former employee was directly involved in purchasing in 1995: a new public procurement will ensue, the specifications for which are original and not derivative of the 1995 procurement; technology has changed; and the parties are not entirely the same. [AO 04-2] [Contrast: an earlier informal opinion issued to the same individual concluded that the lifetime bar precluded him from assisting the original supplier on finding a solution to mechanical difficulties arising from the initial procurement.]
A former TA employee is not barred from making a proposal to TA demonstrating new, contact-less "smart card" technology, as it is a new transaction and not a continuation of the same magnetic fare collection transaction in which he participated while at NYCTA. [05-3]
c. Budgets
Each year’s State budget is a separate transaction. This includes the
money to be raised and expended during the fiscal year and the
appropriation bills authorizing expenditures; it does not include bills
passed with appropriation bills or specific sections of budget bills
that create new programs, substantially amend existing programs or
change substantive law. [AO 95-32]
d. Cases
The lifetime bar does not prohibit a former DSS employee from serving
as a subcontractor to a non-governmental entity under its contract with
DSS, as the category of cases on which he would work is different from
the category of cases on which he worked while in State service. [AO 96-18]
Successive rate utility cases are considered different transactions for the purpose of the lifetime bar since the PSC must re-estimate every component of a utility’s revenue requirement for a new rate period. [AO 95-7]
e. Proceedings
The lifetime bar does not preclude a former DEC employee from representing a municipality in connection with a permit proceeding for the expansion of a solid waste facility where he was involved in the adjudicatory process which resulted in the issuance of a permit for the existing facility: the applications for the two permits constitute separate proceedings and transactions, as the new application is not dependent upon the prior permit, nor is it a natural or expected continuation of the former permit and transaction, and it will be based on new engineering plans and specifications. [AO 96-12]
A PSC proceeding which established generic principles governing the restructure of the electric industry is not the same transaction as proceedings in which the PSC applies the generic principles to each utility on a case-by-case basis in the context of each company’s individual circumstances. [AO 96-19]
f. Training
Lifetime bar does not prohibit former employee from utilizing manual developed while in state service but within the public domain, and from providing training to the same types of organizations to which he provided training as a former State employee. [AO 01-03]
A former employee may provide his former agency with information about new training and attend meetings, even though he was responsible for training while in State service, as long as the content of the training program is new. [AO 94-14]
The lifetime bar does not preclude a former state employee from teaching a course developed after leaving state service utilizing expertise gained while in state service, as long as there is nothing in the materials which would be considered confidential or proprietary information of the agency. [AO 01-6]
g. Other examples
Based upon the changing location of the sediments, the new sources of PCB pollution, the vastly expanded knowledge base and the confined nature of the former employee’s involvement with PCBs while at DEC, the previous work and the proposed contract services constitute separate transactions. [AO 96-27] A former employee may use knowledge of his or her former agency’s past policies and procedures to provide advice on a new transaction. [AO 91-2] [See also AO 91-18]
A former employee may assist clients in seeking grant money under a law for which he lobbied as a State employee. The seeking of a grant is a different transaction from lobbying for the law. [AO 93-13]
A former Assistant Attorney General who was substantially involved in a particular investigation by the AG would be precluded by the lifetime bar from having any further involvement with the AG’s investigation but he would not be precluded from a similar SEC investigation because it was commenced after the AG’s investigation and because of the independent nature of the SEC’s action. [AO 03-8]
C. When is a case, proceeding, application or transaction one with
respect to which a former employee was "directly concerned" and in
which he or she "personally participated . . . or was under his or her
active consideration" while in State service?
Personal participation and direct concern in a specific case requires
more than an awareness of or informal conversation concerning the
circumstances. [AO 89-3]
Mere acquaintance with or knowledge of a fact or circumstance is insufficient to trigger the lifetime bar; presence at a meeting where an issue is discussed where the former employee did not vote on the issue, although others did, does not rise to the level of personal participation on the transaction. [AO 90-16] For application of this principle in other opinions, see [AO 95-7] and [AO 95-16].
1. Situations in which the Commission found direct concern and personal participation, or active consideration.
For an agency head, transactions handled by senior staff are imputed to
him or her. A former agency head cannot work on the same transaction
handled by top level staff. [AO 92-20] With regard to actions of lower level staff, the Commission has said the following:
We are aware of the hazard of imputing all actions of staff to the supervisor for purposes of determining whether there has been a violation of the ethics law. In reaching this conclusion, we have considered that the principal here was the head of the agency, the very senior level of the agent who acted on behalf of the agency head, that the action was on a matter of considerable fiscal impact, and that the communications in question were directed to the Counsel to the Governor and became an official part of the record on a law. Were these actions ministerial or inconsequential or undertaken by lower level staff separated from the principal by many layers of organization, we would be far less inclined to reach this conclusion. [AO 92-20]
A former agency head who approved a loan and subsidy based solely on the recommendations of subordinates was directly concerned with and personally participated in or actively considered the loan and subsidy. [AO 00-02]
With a supervisor at a level below agency head, activities will not be imputed where the active employees are not in the supervisor’s unit. [AO 95-41]
The level of responsibility of the former employee while in State service indicates his active involvement. [AO 91-12]
A former employee who oversaw a procurement and was responsible for overseeing the engineering staff which directed the consultant who prepared the proposal technical specifications for the procurement is barred from future work relating to or flowing from the specifications, as he was in a position to review and become familiar with the overall technical specifications; whether he took advantage of the opportunity to become familiar with the specification is not relevant. [AO 98-20]
2. Situations in which the Commission has not found direct concern and personal participation or active consideration.
Making certain plan information available to SUNY employees by providing them with pamphlets and literature, without providing specific guidance or direction, does not constitute sufficient personal participation to rise to the level of direct concern and personal participation in the programs. [AO 95-14]
An Assistant Attorney General’s tangential involvement in certain prosecutions did not constitute personal participation where the investigation was conducted by another State agency and the matter was assigned to a different assistant attorney general where the first Assistant Attorney General only reviewed indictments for form and was consulted briefly prior to the empaneling of the grand jury. [AO 95-41]
D. Where does the Lifetime Bar apply?
The lifetime bar can apply to prohibit services:
- before the Legislature [AO92-20],
- before Congress and federal executive branch agencies [AO 93-13], or
- anywhere. [AO 93-11; 94-18; 95-7; 95-15; 95-16; 95-19; 95-32]
1. Unpaid/volunteer service
When a former employee is working pro bono, the former employee’s law firm is similarly restricted from receiving compensation for handling a lifetime barred transaction; only reimbursement associated with service of process, transcripts, expert fees, etc., may be accepted by the firm. [AO 93-15] [See also AO 02-4]
A former State agency may contact a former employee to seek information about his acts as an employee but may not pay the former employee for the information; a former employee may not, for a fee, recite specific facts to his former agency on past transactions, in which he personally participated and was directly concerned; if necessary, the former agency could hire the former employee as a part-time employee for that purpose. [AO 91-2] [Or the agency head may seek approval from the Commission to contract with the former employee under the Agency Head certification, discussed in Section IV Exceptions, below]
Unpaid service as a "volunteer" on a State board, Commission or Council by a former employee does not violate the two year or lifetime bar. [AO 93-13]
2. Uniform filings in other states
A
former Assistant Attorney General may prepare a uniform franchise
prospectus that will be submitted to franchise regulators in several
states, including NYS, although he may not appear before his former
agency in connection with the submission and may not prepare any
documents which are specific to New York. [AO 95-24]
3. Courts
The lifetime bar does not preclude the former Chief of the Charities Bureau in the Department of Law from testifying as an expert about the standards in the industry with respect to charitable solicitation or practices, but may not testify with respect to the facts in the case or as to whether the defendant met or did not meet the general standards she describes. [AO 95-40]
The lifetime bar prohibits a former employee from serving as an expert witness in any case in which the individual was involved while employed by his former agency. [AO 01-4]
IV. EXCEPTIONS TO THE POST-EMPLOYMENT RESTRICTIONS
A. Government-to-government
Paragraph (e) of §73(8) provides that the two year and lifetime bars shall not apply when a former State officer or employee carries out official duties as an elected official or employee of a federal, State or local government, or any agency of such government. Thus, a former employee may appear, practice, communicate or render compensated services before a State agency if he or she is acting as an elected official or employee of a federal, state or local government or one of its agencies. This exception applies only to government officials and employees; it does not apply to paid consultants of governmental entities. [AO 89-7]
Status as an appointed member of a regional planning board may be equated to that of an employee for purposes of the government-to-government exception. [AO 94-8]
The government-to-government exception does not apply to a mediator appointed by a federal court. [AO 96-1]
The New York State Association of Counties is not a governmental agency and §73(8)(e) is not applicable to its employees. [AO 96-15]
Section 73(8)(e) is applicable to employees of the New England Interstate Water Pollution Control Commission. [AO 96-16]
The I-95 Corridor Coalition is governmental in nature and §73(8)(e) covers its employees. [AO 98-17] Because of the quasi-public nature of Amtrak, the two year and lifetime bars did not prohibit a former LIRR employee who now works for Amtrak, from serving on a subcommittee and, arguably, working on the same transaction with which he was directly concerned as an employee of LIRR. [AO 98-18]
No government-to-government exception under §73(8)(e) for related not-for-profit housing corporations where they were not formed by a governmental agency and are not controlled by government officials. [AO 00-6]
B. Corporations closely affiliated with government
The post-employment restrictions do not apply when employees of a State agency transfer to the payroll of a not-for-profit corporation recognized by the State Finance Law as being closely affiliated with the agency. [AO 95-2] This exception also applies when employees retire from State service. [AO 02-3] However, this exception applies only when the transfer is to the state agency’s closely affiliated corporation, and not when it is to a corporation affiliated with another state agency. [AO 95-17] The two year bar will not run until the person leaves the employment of the closely affiliated corporation.
C. Agency head certification
Legislation enacted in 2004 created a process by which a former state officer or employee may contract with his or her former agency in certain circumstances. Specifically, an agency may contract with its former employee, when otherwise prohibited by the two year or lifetime bars, when the agency head certifies in writing to the Commission that such former employee has expertise or knowledge with respect to a particular matter which is otherwise unavailable at a comparable cost. The Commission must review and approve all such certifications, and has issued standards for doing so. Where approval of the contract is required under State Finance Law §112, the comptroller shall review the certification.
D. Health care professionals
Legislation
also enacted in 2004 permits former State-employed health care
professionals to treat patients and clients at the State facility which
formerly employed the health care professional. Specifically, health
care professionals who provided treatment and/or medical services to
individuals residing in or served by a State-operated facility are not
barred from rendering services to such individuals, who were in their
care prior to leaving State service, at the State-operated facility
which employed them.
E. Other exceptions
There
are a few other specific exceptions to the two year and lifetime bars,
but they apply only in narrow situations. [See §73(8)(f) - former
"temporary" employees contracting with the former agency for "routine
clerical services"; §73(8)(g) - Y2K experts; §73(8-a)- State’s
witnesses; and §73(8)(b) - employees laid off in calendar years 1995
through March 31, 1999]
F. No hardship exemption
Public Officers Law §73(8) does not contain any provision by which an individual can apply for a "hardship exemption"; absent a specific statutory exemption, it is beyond the Commission’s statutory authority to grant such a request. [AO 93-8]
Brief length of service with a State agency does not mitigate application of the two year bar. [AO 99-16]