Ethics Commission       Directory of Advisory Opinions       Directory of Laws and Regulations        N.Y.S. Department of State  


New York State Ethics Commission
Alfred E. Smith State Office Bldg.
80 South Swan Street, 11th Floor, Suite 1147
Albany, NY 12210


Advisory Opinion No. 01-3: The lifetime bar of Public Officers Law §73(8)(a)(ii) does not preclude a former State employee from providing training he developed while in State service for the same types of organizations; the two year bar of Public Officers Law §73(8)(a)(i) does not preclude the former employee from being paid by funds from the former State agency, provided that the former agency has no role in approving the hiring of the former employee.

INTRODUCTION

The following advisory opinion is issued in response to a request submitted by [ ] an employee of the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"), who asks whether, should he leave State service, the revolving door restrictions of Public Officers Law §73(8)(a) would preclude him from providing training with materials he developed while in State service to the same type of organizations he trains as a State employee.

Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") renders its opinion that the lifetime bar of Public Officers Law §73(8)(a)(ii) does not preclude [the requesting individual] from providing training he developed while in State service for the same types of organizations, and the two year bar of Public Officers Law §73(8)(a)(i) does not preclude [the requesting individual] from being paid by funds from the former State agency, provided that the former agency has no role in approving his hiring and he does not otherwise appear before OMRDD.

BACKGROUND

[The requesting individual] is currently employed by OMRDD in the civil service title of [ ], and is considering applying for an early retirement incentive. His State job duties require him to be involved with the development and implementation of a new State Plan service -- Medicaid Service Coordination ("MSC"). The program provides service coordination (formerly called case management) to people with developmental disabilities in the State. [The requesting individual] wrote the MSC manual, was involved in developing the operational guidelines of the program, and has provided on-going technical assistance to OMRDD's regional offices and more than 300 provider agencies which have contracts with OMRDD to offer MSC. Several copies of the manual have been sent to the provider agencies, and the providers already use the manual to train their own staff. The manual will soon be posted on OMRDD's webpage.

[The requesting individual] has been contacted by a provider agency association about a part-time position should he retire. He anticipates that most of his job responsibilities would focus on training staff from the association's members with respect to MSC and other issues pertaining to service coordination.

[The requesting individual] poses several questions: may he conduct training on MSC and other service coordination-related topics for staff from agencies that belong to the provider association? May he use the MSC manual that he developed while in State service for such training? May the provider association pay him from grant monies provided by OMRDD or the Developmental Disabilities Planning Council ("DDPC")?(1)

APPLICABLE STATUTE

Public Officers Law §73(8)(a)(i) 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.

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

THE TWO YEAR BAR

The "revolving door" provisions of Public Officers Law §73(8)(a) set 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 two year bar prohibits a former State employee from appearing, practicing or rendering services for compensation in relation to any case, proceeding, application or other matter before his or her former agency for two years following separation from State service.

[The requesting individual] first asks whether he may conduct training with respect to MSC and other service coordination-related topics for staff from agencies that belong to the provider association. He has stated that OMRDD employees would not be present during such training. [The requesting individual] also asks whether there is a prohibition against the provider association using grant money from OMRDD or the DDPC to fund his position.

Because OMRDD employees would not attend the training, [the requesting individual's] conduct of the training will not constitute an appearance before his former agency. However, under the two year bar, a former employee may not render services for a private entity that is funded by the former agency if--pursuant to contract or regulation--the former agency has a role in approving the hiring of the former employee or if the former employee's work product is submitted to or approved by the former agency (Advisory Opinion No. 90-21). Neither is the case here. Furthermore, the Commission, in Advisory Opinion No. 99-17, concluded that "once a contract has been awarded, the contract itself is not a matter before the agency, and a former employee is not prohibited from working on the contract merely because his former agency awarded it." Therefore, [the requesting individual] may be paid pursuant to a contract between his former agency and his new employer.(2) Finally, the provider association may use DDPC funds for [the requesting individual's] compensation, because the DDPC is not his former State agency for purposes of the two year bar. Thus, the two year bar does not preclude [the requesting individual] from providing the training.

THE LIFETIME BAR

The lifetime bar prohibits former State officers and employees from appearing, practicing, communicating or rendering services before any State agency, and rendering services for compensation for any such services rendered 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. In essence, the lifetime bar precludes [the requesting individual] from working on any case, application, proceeding or transaction on which he worked while employed by OMRDD. There is no case, application or proceeding at issue here. To be determined is whether there is a transaction from which [the requesting individual] is lifetime barred.

Here, the issue is whether [the requesting individual's] use of the MSC manual which he developed to train the same types of organizations that he currently trains on MSC, namely the provider community, is a transaction subject to the lifetime bar of Public Officers Law §73(8)(a)(ii).

In Advisory Opinion No. 94-14, the Commission considered the lifetime bar in circumstances involving the former Director of Training for a State agency. Following his retirement, the former Director was a member of a professional association that had regular contact with the former State agency concerning the training of local personnel. The former Director asked whether he could provide the State agency with information about new seminars, courses, training materials, meetings, attendance rosters and other information that the State agency required to update its training records. The Commission concluded:

In the instant matter, [the requesting individual] has inquired as to whether he may provide the [State agency] with information about new seminars, courses, training material, meetings, attendance rosters and other information that the [State agency] requires to update its training records. According to the [State agency], the training seminars and courses, as well as the instructors who offer the training, differ from year to year. Likewise, those individuals attending the training seminars change from year to year. Based on these facts, even though [the requesting individual] was responsible for the training of [ ]while in State service, he may provide the [State agency] with the information as proposed, as this information pertains to new matters.

In Advisory Opinion No. 94-9, the Commission concluded that the development of a non-confidential methodology by a State employee does not act as a lifetime-barred transaction and prevent the employee from applying the methodology to uses other than those to which he applied them while in State service. In Advisory Opinion No. 94-18, the Commission held that knowledge and methodologies developed while in State service may be applied in new settings after the individual has left State service. In that opinion, confidential information was not involved and the techniques developed by the requesting individual were not protected from the use or development by others.

Developing and conducting training is similar to the development and use of a methodology, and neither is covered by the lifetime bar. While there might be an issue if [the requesting individual] were conducting the training utilizing confidential or proprietary information of OMRDD, here, the manual is already in the public domain, has been shared with the provider community and will shortly be available on OMRDD's website. While [the requesting individual] may possess a particular skill and familiarity with the manual, presumably anyone who obtains a copy could provide the training. Therefore, the Commission concludes that the lifetime bar does not preclude [the requesting individual] from using the MSC manual, which he developed while in State service, to provide training to the provider association.

CONCLUSION

The Commission concludes that the lifetime bar of Public Officers Law §73(8)(a)(ii) does not preclude [the requesting individual] from providing training he developed while in State service for the same types of organization, and the two year bar of Public Officers Law §73(8)(a)(i) does not preclude [the requesting individual] from being paid by funds from the former State agency, provided that the former agency has no role in approving his hiring and he does not otherwise appear before OMRDD.

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:

Paul Shechtman, Chair
Robert J. Giuffra, Jr.
Henry G. Gossel
Lynn Millane
O. Peter Sherwood, Members

Dated: May 9, 2001


Endnotes

1. The DDPC is established within the executive department and consists of 20 persons appointed by the Governor. Its Chair, in consultation with the other members of the council, shall appoint and employ such personnel as he or she deems necessary, prescribe their duties, fix their compensation and provide for reimbursement of their expenses within amounts available from federal funds. See, Executive Law §450.

2. Of course, he remains barred from communicating with an employee of his former agency with intent to influence an agency decision or to gain information not generally available to the public.

  Ethics Commission       Directory of Advisory Opinions       Directory of Laws and Regulations        N.Y.S. Department of State