Advisory Opinion No. 08-03

Pursuant to Public Officers Law §73(8)(a)(i), a New York State Thruway Authority employee anticipating retirement may not be employed on a Thruway Authority project whose contract will be awarded within two years of his departure from State service since the consultant for whom he anticipates working must submit the employee's name and credentials to the Thruway Authority for prior approval as part of its bid.

Introduction

In a letter dated [ ], [a State employee ("the State employee")] requested an informal opinion of the New York State Ethics Commission ("Ethics Commission") regarding the application of the post-employment restrictions set forth in Public Officers Law §73(8) to his circumstances. On [ ], the Ethics Commission issued an informal opinion to [the State employee] advising him that, based on Ethics Commission precedent, he would not be in violation of Public Officers Law §73(8)(a)(i) if he accepted a position as a Construction Inspector on a contract to be let by the New York State Thruway Authority ("Thruway Authority"), his current employer. The informal opinion, stated, in part, that it was based only on the facts that [the State employee] provided, advisory in nature and not binding on the Ethics Commission. The informal opinion also stated that [the State employee] could request a formal opinion pursuant to Executive Law §94(15).

In a letter dated [ ], [the State employee] asked the New York State Commission on Public Integrity ("Commission") to issue a formal opinion regarding the same issue that was the subject of his prior request.(1) [the State employee] also requested a formal opinion whether he could accept a different position on the same project.

Pursuant to Executive Law Section 94(15), the Commission concludes that [the State employee] may not be employed on a Thruway Authority project whose contract will be awarded within two years of his departure from State service since the consultant for whom he anticipates working must submit his name and credentials to the Thruway Authority for prior approval.

Background

At all times relevant to this opinion, [the State employee] was a Civil Engineer [ ] in the [ ] Construction Management Unit of the Thruway Authority. When he submitted his request for an informal opinion, [the State employee] intended to retire in [ ]. Before his anticipated retirement, [the State employee] asked the Ethics Commission to advise him whether, within two years of his retirement, he could accept a position as a Construction Inspector on a project in the Thruway Authority's [ ] Division involving major lane rehabilitation between Thruway Exits [ ] and [ ]. The contract for this project [ ], which would last three-years, was to be competitively bid and awarded after [the State employee's] anticipated retirement. As a Thruway Authority employee, [the State employee] had no involvement in [the contract] and never worked on the section of the Thruway between Exits [ ] and [ ]. Nor did he have any previous work-related contact with the consultant firm designing the contract or with any other consultants that would be interested in the construction inspection agreement.

As a Construction Inspector, [the State employee's] responsibilities would include observing specific work operations to ensure compliance with the New York State Standard Specifications and project plans. He would document the daily duties performed on the Daily Inspector's Report, which would be reviewed by the Consultant's Office Engineer and signed by the Consultant's Project Engineer. He would not have the authority to make policy decisions and would have no direct contact with Thruway Authority personnel.

In an informal opinion dated [ ], the Ethics Commission concluded that [the State employee] could perform the work of a Construction Inspector on the Thruway Authority contract provided he adhered to the restrictions set forth in Advisory Opinions Nos. 99-17, 00-04 and 04-07. These restrictions included that [the State employee] could only report to the consultant's Office Engineer and that he could not have substantive contact with Thruway Authority employees. In addition, the Commission noted that "[y]ou are reminded that the consultant may not submit your name to the Thruway Authority for approval, as this would be a prohibited appearance within the two-year period (See, Advisory Opinion No. 04-07)." (2)

After receiving the informal opinion, [the State employee] asked for a formal opinion, pursuant to Executive Law §94(15), concerning whether he could accept the position of Construction Inspector. He also requested that the formal opinion advise him whether he could accept the position of "Office Engineer" on the same project. In that position, he would have no direct contact with the Thruway Authority.

Upon consultation with the Thruway Authority regarding [the contract], a project not yet advertised for the solicitation of bids, the Commission was informed that the titles of the personnel listed for the project include one Project Engineer, one Assistant Project Engineer, two Office Engineers, five Senior Inspectors, and three Inspectors, positions in which [the State employee] has indicated an interest. Thruway Authority staff associated with [the contract] confirmed to Commission staff that any bidder would be required to submit the name and credentials for any personnel it intends to employ for the listed positions for Thruway Authority approval.

Applicable Statute

Public Officers Law §73(8)(a)(i) sets the ground rules for what individuals may do with the knowledge, experience, and contacts gained from public service within two years after they terminate their State employment, as follows:

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.

Discussion

In Advisory Opinion No. 04-07, the Ethics Commission concluded that a former employee of the Department of Transportation ("DOT") could not accept a position as an Office Engineer with a consulting engineering firm because he would report directly to a DOT employee and would have substantial contact with DOT employees. The Ethics Commission stated:

Specifically, his entering data for the OOCs at the direction of the EIC [Engineer-In-Charge] will cause him to appear before DOT in violation of the two-year bar because he will be dealing directly with the EIC, rather than reporting to the consultant's resident engineer. In addition, [the former State employee] will have substantial contact with DOT employees; a fact which was not present in Advisory Opinion Nos. 99-17 and 00-04.

Moreover, the Ethics Commission determined in Advisory Opinion No. 04-07 that it would be a prohibited appearance for the consulting engineering firm to submit the name of the candidate for the position of Office Engineer to DOT for approval. Thus, the former DOT employee could not serve as an Office Engineer as proposed.

In Advisory Opinion No. 91-17, both a future employer of a DOT employee and the employee requested a formal opinion as to whether it would be an "appearance" banned by Public Officers Law §73(8) if, within two years of the employee's departure from State service, the employer submitted the employee's resume as part of a bid on a DOT contract proposal. The Ethics Commission determined that the employee's resume could not be submitted, stating that the Ethics in Government Act of 1987, which created the "revolving door" prohibition contained in Public Officers Law §73(8), was "designed to limit opportunities for abuse of official positions and eliminate any appearance of undue influence." Further, the statute was meant to preclude a former State employee from leveraging his or her knowledge, experience or contacts gained after leaving State service to his or her own advantage or that of a client. The Ethics Commission stated in Advisory Opinion No. 91-17:

It is of no consequence that this former employee did not exercise substantial discretion in his former position. He was capable of developing relationships with other [agency] employees during his four years of employment with the agency which could lead to favorable treatment or undue consideration upon submission of his resume for approval.

The Ethics Commission also has found that the two-year bar prohibits a former State employee from submitting an application or proposal to his former agency, or having a role in negotiating the terms of an application or proposal (See, Advisory Opinion No. 90-03).

In sum, Ethics Commission precedents make it clear that the bid solicitation requirement that [the State employee] would have to be identified by name and his credentials submitted to the Thruway Authority for approval regarding this project bars his employment under [the contract] within two years after [the State employee] leaves State service.(3)

Conclusion

The Commission concludes that the post-employment restrictions of Public Officers Law §73(8)(a)(i) preclude this Thruway Authority employee from applying for employment as an Office Engineer or Inspector with regard to the referenced contract within two years of his termination from State employment since his name and credentials must be submitted for agency approval as part of a submission to the Thruway Authority.(4)

All concur:

John D. Feerick,
                 Chair
Virginia Apuzzo
Andrew G. Celli, Jr.
Daniel J. French
David L. Gruenberg
Hon. James P. King
Loretta E. Lynch
John T. Mitchell,
                 Members

Dissent:

Daniel R. Alonso
John M. Brickman
Richard D. Emery
Robert J. Giuffra, Jr.
Hon. Howard A. Levine
                 Members

Dissenting Opinion

Public Officers Law Section 73(8)(a)(i), bars former State officers and employees for two years from "appear[ing] or practice[ing] before [the former employee's] state agency." Instead of examining the vice that the Legislature sought to address in this statutory language, the Commission's ruling today substitutes a talismanic analysis - mere submission of a former employee's resume to a State agency--to bar line-level employment of a former employee. The Commission finds that a former Thruway Authority highway worker "appears" before his former agency solely on the basis that his new employer must submit his resume, among an array of other documents, to qualify for consideration for a Thruway Authority contract to rehabilitate highway lanes. In our view, this reading of the statutory language elevates form over substance and, in the process, overstates the thrust of two prior Ethics Commission rulings and ignores the import of a seminal Commission ruling that, we believe, should control this case.

As today's Opinion describes, in 1991, the former Ethics Commission ruled in Advisory Opinion No. 91-17 that submission of a resume, in and of itself, by a contractor who wished to hire a former DOT worker constituted an "appearance" prohibited by the two-year ban. But a subsequent ruling in 1999, Advisory Opinion No. 99-17, determined that a former DOT employee who held a somewhat higher position with a private contractor than the worker before us could work on a DOT contract within the two-year period and interact on the job with DOT employees administering the contract. The fulcrum of this ruling was that the employee would not be "appearing or practicing" before his former agency as long as his interactions with his former agency did not seek to influence any DOT decision or to gain information not available generally to the public.

Ethics Commission Advisory Opinion No. 99-17 relies, in part, on a State Supreme Court's reversal of a 1998 final determination and civil penalty assessed by the Ethics Commission involving a former DOT employee hired by a subcontractor as a "traffic counter installer" for a new roadway. The Ethics Commission held that the former DOT employee violated the two-year bar when he attended a meeting at his former agency; had regular contact with DOT employees on the job site; and made inquiry to a DOT inspector regarding a load of concrete which had been refused by the contractor. The reviewing court concluded that "[t]he Commission's long standing policy of expanding the interpretation of the verbs 'appear or practice' to include 'communicat[ion]' is not supported by the plain language of the statute . . . ." Helin v. New York State Ethics Commission, unreported decision of the Supreme Court, Albany County, Justice Malone, May 21, 1999. On the basis of the court's analysis, in Advisory Opinion No. 99-17 the Ethics Commission "revisit[ed]. . . the bright line rule prohibiting any communication with one's former agency," ruling that the Legislature sought only to "reach[] . . . efforts to influence a decision of the former agency or to gain information from the agency that is not generally available to the public." Id. at p. 3. The Ethics Commission concluded that several of its former interpretations of the two-year ban were "overbroad," and that "[a] rule that DOT's mere involvement in a project is sufficient to make the project a 'matter' before the agency would go far to preventing individuals leaving DOT from finding work in the area of their expertise without advancing the goals of the State's ethics law." Id. at p. 4.

This last point is the operative consideration in the matter before us. While we agree that Advisory Opinion No. 99-17 does not address precisely whether submission of a resume, without more, constitutes an "appearance" before a former agency, for the Commission to rely on this ministerial contract application requirement to trigger a flat disqualification under Public Officers Law §73(8)(a)(i) does not "advance[] the goals of the State's ethics law." The ruling today is exactly the "overbroad" application of the statutory language that Justice Malone reversed in Helin and the Ethics Commission rejected in No. 99-17. It is logically indistinguishable from this Commission's disapproval of mere "communication" as constituting "appearance or practice" before an employee's former agency.

Here, the Commission's decision necessarily presumes that a line-level engineer's resume submitted in response to DOT's Request For Proposals to attract potential contractors has such a likelihood of undue influence over DOT decision makers that a prophylactic rule is required. If there were evidence that the contractor clamored to present the former DOT employee's resume to DOT, perhaps we should look more closely. But here, DOT requires submission of all resumes. Certainly, there is no empirical or other support for the assumption that DOT decision makers are influenced by the presence of a resume from an engineer who worked at DOT within the last two years. Thus, without any factual or record basis, the conclusion that there is undue influence exaggerates the concern for even the appearance of improper influence far beyond any expressed by the Legislature in the statutory proscription of the two-year ban on "appearing or practicing" before one's former agency.

Therefore, we respectfully dissent.

Date: June 30, 2008


footnotes:

1. The Public Employee Ethics Reform Act of 2007 created the Commission on Public Integrity. The thirteen-member Commission assumed the powers and duties of the Ethics Commission and the New York Temporary State Commission on Lobbying. See, Chapter 14 of the Laws of 2007. Executive Law Section 94(1) states that "[t]his section shall not revoke or rescind any regulations or advisory opinions issued by the state ethics commission and the temporary lobbying commission in effect upon the effective dates," i.e., September 22, 2007, for these purposes.

2. The Ethics Commission noted in Advisory Opinion No. 04-07 that the employer's submission of the name of the candidate for the position of Office Engineer "for approval" by the employee's former agency "would be a prohibited appearance."

3. [the State employee] should also be aware of the lifetime bar provision contained in Public Officers Law §73(8)(a)(ii), which prohibits a former State employee from appearing, practicing, communicating or otherwise rendering compensated 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. In essence, the lifetime bar precludes a former State employee from working on any case, application, proceeding or transaction on which the former employee worked while in State service. In this case, this means that, after leaving State service, [the State employee] could not work on a project on which he worked as a Thruway Authority employee.

4. [the State employee] also inquired whether he could accept a position as an Office Engineer pursuant to this contract. In light of our conclusion that required submission of [the State employee's] name and credentials for agency approval precludes him from pursuing the position, his inquiry regarding whether he could be an Office Engineer is moot.

However, the Thruway Authority informed Commission staff that the Thruway Authority anticipates receiving numerous bids from qualified bidders. In the event that [the State employee] is the only qualified person for one or more positions at issue, the Thruway Authority may apply to the Commission for an exemption from the post-employment restrictions discussed in this opinion. See, Public Officers Law Section 73(8-b).