Advisory Opinion 08-05

Advisory Opinion No. 08-05: The revolving door restrictions of Public Officers Law §73(8)(a)(ii) do not preclude a former [job title] of the New York State [Agency] from providing expert testimony in a court proceeding where his former agency is a party and he does not testify as to any transactions with which he was directly concerned and in which he personally participated during the period he was the [job title].

INTRODUCTION

The following advisory opinion is issued in response to a request submitted by [ ], a former [job title] of [a State agency], for an opinion whether the post-employment restrictions of Public Officers Law §73(8)(a)(ii) prohibit [the former State employee] from providing expert testimony in litigation concerning the collapse of a bridge located in [the former State employee’s] former region. The bridge, constructed sixteen years before [the former State employee] became [job title], collapsed ten years after [the former State employee] left State service.

Pursuant to the authority vested in it by Executive Law §94(15), the New York Commission on Public Integrity (“Commission”) renders its opinion that Public Officers Law §73(8)(a)(ii) does not preclude [the former State employee] from providing expert testimony based on his engineering knowledge, training, and experience concerning industry standards for bridges, specifically [ ]. However, [the former State employee] may not provide testimony about any transactions with which he was directly concerned and in which he personally participated during the period he was the [job title].

BACKGROUND

[The former State employee] was employed by [the State agency] as [job title] of

[ ] from [date] until his retirement on [date] As a [job title], he reported directly to the [the State agency] Commissioner. There were ten [senior employees] who reported to him. Acting through these [senior employees], [the former State employee] had oversight responsibility for the year-to-year capital programs in [ ] and the operations budget for the [ ].

[The former State employee] has been asked to provide expert engineering testimony concerning the [date] collapse of a bridge, which is [ ] carrying [ ] under [a highway] (“[ ] Bridge”). [ ] The collapse also caused water to back up and flood a residence.

The [ ] Bridge was constructed in [date] and is located in [ ]. [The former State employee] had no role in its construction. The [ ] Bridge required emergency stream channel erosion repairs in [date], which was during [the former State employee’s] tenure as [job title]. According to [the former State employee’s] correspondence with the Commission, the repairs were required to re-establish the channel. This involved placing large heavy stones for stream channel protection. However, no repairs were required or done to the bridge structure itself. The emergency contract to repair the erosion was designed by the staff of the [ ] Engineer, who was one of the ten [senior employees] reporting to [the former State employee]. The contract was supervised and inspected by staff of the [ ] Engineer, who also reported to [the former State employee]. The job was completed after [the former State employee] retired from [the State agency] in [date].

While [the former State employee] recalled there was erosion of several culverts and bridges on [the highway] in [date] that required emergency repairs, he indicated in correspondence with Commission staff that he does not have any specific knowledge that the [ ] Bridge existed as a [ ]. While [the former State employee] was aware of the erosion related repairs, he was not aware of any required repairs to the bridge itself. [The former State employee] indicated that, prior to his retirement, there were no “Red Flag” ratings for the structure, which is the worst structural deficiency rating that can be given.

[The former State employee] has been asked by claimants in a litigation seeking damages from the State to provide expert testimony based on his engineering knowledge, training, and experience concerning industry standards for bridges, specifically [ ] structures. This testimony could include his knowledge of [the State agency] design and construction procedures that were current during and before the time the [ ] Bridge was built. [The former State employee] has been advised that he will not be asked to provide any testimony pertaining to the [ ] Bridge during the period he was the [job title]. Specifically, [the former State employee] will not be asked about the erosion repairs related to the [ ] Bridge. He will be asked, however, to provide expert engineering testimony pertaining to the inspection and failure of the structure for the period following his termination from State service until the collapse in [date].

[The former State employee] requested an informal opinion on [date] from the Commission asking whether providing this testimony would violate the lifetime bar provisions of the Public Officers Law. The informal opinion issued on [ ] determined that, consistent with prior Commission precedent, [the former State employee] could provide expert testimony based on his engineering knowledge, training, and experience on industry standards for bridges, specifically [ ]. [The former State employee] could testify about his knowledge of [the State agency] design and construction procedures that were current during and before the [ ] Bridge was built, which is prior to his tenure as [job title]. The informal opinion stated that [the former State employee] could not provide any testimony about the [ ] Bridge within the period that he was the [job title], which would include the period when erosion repairs to the [ ] Bridge were considered. However, [the former State employee] could provide expert engineering testimony pertaining to the inspection and failure of the structure for the period after he left State service, i.e., from [date] until the collapse in [date].

[The former State employee] now requests a formal opinion from the Commission concerning this issue.

APPLICABLE LAW

The post-employment restrictions, set forth in Public Officers Law §73(8)(a), establish the ground rules for what individuals may do with the knowledge, experience, and contacts gained from public service after they terminate their employment with a State agency. The restrictions are of two types, a two-year bar and a lifetime bar. Since [the former State employee] retired more than two years ago, only the lifetime bar is applicable. It provides as follows:

(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.

In Matter of Gormley v. New York State Ethics Commission, 46 A.D.3d 1078, (3d Dept., 2007), an Article 78 proceeding, the Appellate Division upheld a determination of the Ethics Commission concerning William Gormley, a former State employee who held various senior management positions in the Department of Health, including as executive director of a project that developed and implemented Medicaid reimbursement rates for nursing homes. Five years after leaving State service, Gormley was hired to submit an expert affidavit on behalf of litigants in a dispute with the Department of Health over the adequacy of Medicaid reimbursement rates for nursing homes. The Third Department concluded that substantial evidence supported the Ethics Commission’s decision that Gormley violated Public Officers Law §73(8)(a)(ii), the lifetime bar, by submitting an affidavit contained averments based on insider knowledge and contacts. The Court stated:

[B]y submitting an affidavit to a court in an attempt to assist litigants challenging the rationality of the RUGS-II methodology that he himself developed and including in such affidavits statements expressing his personal intentions in so developing this system, petitioner received compensation for services rendered in relation to a ‘transaction’ with which he was directly involved while employed by the Department, thereby establishing a clear violation of the statute [citation omitted].

In Advisory Opinion No. 91-18, the Commission applied the lifetime bar to a former [employee of a second State agency] who, while employed by the State, personally participated in the design and inspection of token booth fire suppression systems and other safety systems. The Commission held that he would be precluded from participating in any contract work related to the design and inspection of the token booth fire suppression systems for the [second State agency]. He was also involved in training and certification of employees in regard to hazardous operations and, thus, was similarly precluded from doing any contract work related to the same training or certification with the [second State agency]. Finally, the former State employee was precluded from working on any modification or extension of existing projects, training, designs, reviews, inspections or other transactions on which he worked while with the [second State agency]. In each of these instances, his knowledge regarding the project was not cursory, but rather specific and significant, providing him a greater advantage in preparing bid proposals for a consulting firm or in dealing with the [second State agency]. Advisory Opinion No. 91-18 also noted that the lifetime bar does not preclude a former State employee from appearing, practicing, communicating or rendering services for compensation on new and separate matters or transactions, notwithstanding the fact that the State employee may have been directly concerned or personally participated in a similar or related transaction while he was in State service.

In Advisory Opinion No. 95-40, the Commission was asked to consider whether the lifetime bar prohibited a former employee from testifying about general industry standards in a proceeding that stemmed from prior litigation in which the former employee participated. The lifetime bar precluded the former employee from receiving compensation for her testimony about the prior litigation, but she was permitted to testify as an expert with respect to industry standards. The Commission cited Advisory Opinion No. 90-3, which states:

The information he has obtained as to how the former State agency operated or what they expect when someone does appear before them is generic information, even though obtained while the individual was employed at the agency. . . . The ‘revolving door’ limitation is not meant to limit a former employee from sharing general knowledge on the operation of his or her former State agency with anyone - even if that does result in compensation received.

DISCUSSION

The [ ] Bridge was under [the former State employee’s] general responsibilities as [job title]. It was constructed [ ] before [the former State employee] became [job title] and he had no role in its construction. The collapse of the [ ] Bridge, the subject of the suit in the Court of Claims, occurred [ ] after his retirement from [the State agency]. The collapse of the bridge is a new and separate matter, notwithstanding the fact that [the former State employee] may have been directly concerned or personally participated in other transactions concerning the [ ] Bridge, specifically the emergency erosion channel repairs, which did not include repairs to the bridge itself.

Consistent with Matter of Gormley and the Commission’s Advisory Opinions discussed above, we affirm the conclusion in the [ ] informal opinion previously issued to [the former State employee]. [The former State employee] may provide expert testimony based on his engineering knowledge, training, and experience on industry standards for bridges, specifically [ ]. [The former State employee] also may testify about his knowledge of [the State agency] design and construction procedures that were current during and before the [ ] Bridge was built, a period prior to [the former State employee’s] tenure as [job title]. Similarly, [the former State employee] may provide expert engineering testimony pertaining to the inspection and failure of the structure for the period following his termination of State service in [ ] until the collapse in [ ]. However, [the former State employee] may not provide any testimony about the [ ] Bridge during the period that he was the [job title], which includes the period when the erosion repairs to the [ ] Bridge were made. Any such testimony would constitute a violation of the lifetime bar provisions of the Public Officers Law since it would pertain to a transaction with respect to which [the former State employee] “was directly concerned and in which he ... personally participated during the period of his ... service or employment, or which was under his ... active consideration.”

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.

All concur:
John D. Feerick,
       Chair
Daniel R. Alonso
John M. Brickman
Richard D. Emery
Daniel J. French
David L. Gruenberg
Loretta E. Lynch
John T. Mitchell,
       Members

Dated: October 7, 2008