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New York State Ethics Commission
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Advisory Opinion No. 01-4: A former New York City Transit Authority employee may work as an expert witness in cases brought against the Transit Authority, the Metropolitan Transportation Authority and its other affiliates and subsidiaries provided the lawsuit has been commenced.

INTRODUCTION

This advisory opinion is issued in response to a request by [ ], an employee of the New York City Transit Authority ("TA") who expects to retire shortly. He asks whether, following his retirement from the TA, he may work as an expert witness for plaintiffs' attorneys in accident cases brought against the TA and other affiliates and subsidiaries of the Metropolitan Transportation Authority ("MTA"). On November 30, 2000, the Commission issued an informal opinion that concluded the proposed post-employment activity was permissible. [The requesting individual] has since requested that the Commission issue a formal advisory opinion on the question.

Pursuant to the authority vested in the New York State Ethics Commission ("Commission"), by §94(15) of the Executive Law, and considering the precedent established in Advisory Opinion Nos. 89-7 and 92-22, the Commission concludes that [the requesting individual] may, following his retirement, work as an expert witness in cases involving his former agency and other entities within the MTA family without violating the two year bar of Public Officers Law §73(8)(a)(i), provided that a lawsuit has been commenced in either State or federal court, or the Court of Claims. The lifetime bar provisions of Public Officers Law §73(8)(a)(ii) still preclude him from serving as an expert witness with respect to any case, application, proceeding or transaction with respect to which he was directly concerned and in which he personally participated while in State service, or which was under his active consideration.

BACKGROUND

[The requesting individual] has been employed by the TA since [ ] and currently holds the position of [ ], in the Department of [ ]. He is responsible for training road car inspectors in all phases of their duties so they can prepare stalled and defective trains for safe movement by qualified personnel. He also educates the inspectors to make decisions as to when trains are safe or unsafe for passengers. In conversation with the Commission staff, he states that he intends to retire from the TA shortly.

[The requesting individual] wishes to work as an expert witness in lawsuits involving customers of transit systems who suffered personal injury or property damage. The TA and other affiliates of the MTA, such as the Metro-North Commuter Railroad or the Long Island Railroad, would be the likely defendants.

Relevant to his inquiry is §1212 of the Public Authorities Law (patterned after General Municipal Law §50-h), pursuant to which the TA has the right to orally and physically examine a claimant within a certain time before the claimant can file a summons and complaint; the TA always exercises that right.

APPLICABLE STATUTE

The statutory language setting forth the two year bar is found in Public Officers Law §73(8)(a)(i), which provides 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. 89-7, the Commission concluded that the two year bar does not preclude a former employee from participating in the settlement of a lawsuit involving the former agency because the case is before a court, which, in most cases, must review or approve the settlement prior to its acceptance. The Commission stated:

The representation of a client, as long as the matter is in a court proceeding and does not involve a case, proceeding, application or other matter or transaction which is before the former employing agency, would not violate the "revolving door" provision (emphasis in original).

In Advisory Opinion No. 92-22, the Commission concluded that a former employee may, within two years of separation from State service, receive compensation for services rendered pertaining to litigation involving his former agency, subsequent to the initiation of proceedings in court. "In such a situation, the former employee's appearance is in the court case, not on a matter before the former agency."

In [the requesting individual's] case, because he has been employed exclusively by the TA since[ ] and has been assigned duties only for that agency, only the TA is his former agency.(1) Thus, under the cited precedents, [the requesting individual], as a former TA employee, could not appear or render services as an expert witness, including the preparation of any reports in connection with a §1212 examination, which is a matter before the TA, but he could serve as an expert after the plaintiff files his or her summons and complaint with the court. Once he leaves State service, [the requesting individual] may serve as an expert witness without limitation in cases that involve the other affiliates and subsidiaries of the MTA, subject to the lifetime bar, discussed below.

The lifetime bar provision, contained in Public Officers Law §73(8)(a)(ii), 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. Thus, [the requesting individual] could not serve as an expert witness in any case in which he was involved while employed at the TA. He is encouraged to contact the Commission if he has any future questions on the application of the lifetime bar to his circumstances.

CONCLUSION

The Commission concludes that [the requesting individual] may work as an expert witness following his retirement without violating the two year bar of Public Officers Law §73(8)(a)(i) provided that a lawsuit has been commenced in either State or federal court, or the Court of Claims and that he is otherwise in compliance with the lifetime bar of Public Officers Law §73(8)(a)(ii).

This opinion, unless and until amended or revoked, is binding on the Commission in any subsequent proceeding concerning the person who requested it and who acted in good faith, unless material facts were omitted or misstated by the person in the request for opinion or related supporting documentation.

Concurring:

Paul Shechtman, Chair
Henry G. Gossel
Lynn Millane
O. Peter Sherwood, Members

Robert J. Giuffra, Jr., Member, concurring in part.

I concur in the Commission's conclusion regarding the proposed post-employment activity of [the requesting individual], a New York City Transit Authority ("TA") employee, as an expert witness for plaintiffs in cases against the TA. That said, I write separately because this advisory opinion unnecessarily relies on and reaffirms Advisory Opinion Nos. 89-7 and 92-22, See page 4, supra. In those opinions, the Commission, contrary to the text and purpose of Public Officers Law §73(8)(a)(i), authorized an end-run around this important "revolving door" restriction by permitting recently-separated State officers and employees, if a lawsuit is filed, to negotiate settlements of the legal disputes of their private clients with their former agencies.

I.

In interpreting the Public Officers Law, the Commission must rest on the statute's plain language. In Public Officers Law §73(8)(a)(i), the Legislature expressly directed that:

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 (emphasis added).

Prior to the filing of a lawsuit, Public Officers Law §73(8)(a)(i) clearly bars all contacts, for a two-year period, by a former officer or employee with his or her former agency about the matter in dispute. For present purposes, the critical phrase in §73(8)(a)(i) is "before such agency." In Advisory Opinion No. 89-7, in authorizing former State officers and employees to contact their former agencies to settle lawsuits immediately after leaving State service, the Commission reasoned that such a lawsuit was "before" a court and not "before" the agency, even though the agency -- not a court -- would have to decide whether, and on what terms, to settle the lawsuit.

In reaching this conclusion, the Commission ignored the plain meaning of the statutory term "before." Thus, Black's defines "before" as: "[i]n the presence of; under the official purview of; as in a magistrate's jurat, 'before me personally appeared,' etc." (Black's Law Dictionary 140 [5th ed. 1979][emphasis added]). In relevant part, Webster's defines "before" as "being considered, judged, or decided by (the matter before the committee)" (Webster's New World Dictionary 124 [3d ed. 1989][emphasis in original]).

As the Commission recognized in Advisory Opinion No. 00-1, "nothing in the Public Officers Law provides that a case, proceeding, application or related proceeding may not be simultaneously 'before' both a state agency and a court." The filing of a lawsuit does not divest an agency of jurisdiction over the matter in dispute; the matter remains "before" the agency, i.e., under its official purview. For example, during the pendency of an Article 78 proceeding, the agency retains the discretionary authority -- without judicial oversight -- to reverse administratively the challenged determination or to settle on terms acceptable to the petitioner and, therefore, to moot the lawsuit. (See, e.g., Hodges v. Jones, 195 A.D.2d 647, 648, 600 N.Y.S. 2d 645 [3d Dept 1993][dismissing Article 78 proceeding as moot after agency administratively reversed challenged determination]).

In justifying its conclusion in Advisory Opinion No. 89-7, the Commission suggested that "[i]n most cases, [a] court must review or approve . . . a settlement [with a State agency] prior to its ultimate acceptance." In fact, settlements of lawsuits involving State agencies routinely occur without a court's substantive review of the settlement's terms. Under CPLR §3217(a)(2), a court order is not even required for the parties to agree to discontinue an action "before the case has been submitted to the court or jury."

In any event, nothing in the Public Officers Law directs courts to monitor or to police the ethical propriety of contacts by former State officers and employees with their former agencies with regard to the settlements of lawsuits. When a former agency official meets with his former colleagues in the agency's offices to discuss the settlement of a major lawsuit, no judge is present. And, in State court, prior to a request for judicial intervention, the case is not even assigned to a judge, and, prior to trial, many judges have only passing involvement in a case.

In Advisory Opinion No. 92-22, following its reasoning in Advisory Opinion No. 89-7, the Commission concluded that a former Department of Environmental Conservation lawyer could meet with officials from his former agency to discuss a land dispute at any time after the initiation of a lawsuit. Again, the Commission ignored that a matter could be simultaneously "before" both a court and an agency, reasoning that the lawyer was appearing before the court, even though he sought approval to meet with his agency outside of court.

Thus, under the reasoning of Advisory Opinion Nos. 89-7 and 92-22, the filing of a lawsuit immediately lifts any restriction on a former official's contacts with his former agency, so long as the official or employee was not personally involved in the disputed matter while in State service. Indeed, even if the former official or employee never appears before a court, the revolving door restriction evaporates upon the service of a complaint.

Beyond contravening the plain text of Public Officers Law §73(8)(a)(i), this result subverts the Legislature's purpose in enacting the revolving door rule: for a two-year period, to prevent former State officers and employees, by virtue of their position in State government, from receiving preferential treatment or undue access for themselves and their private clients from their former agencies. This rule rests on the reasonable premise that a two-year "cooling-off" period reduces the risk that former officers and employees will receive such preferential treatment and undue access.

There is nothing about the filing of a lawsuit, standing alone, that eliminates the ethical concerns that prompted the Legislature to restrict the ability of recently-separated State officers and employees to contact their former agencies for a two-year period. Indeed, in regard to the settlement of legal disputes, recently-separated State officers and employees, particularly high-level former officials, often have valuable contacts and knowledge that they can exploit for the benefit of themselves and their private clients. Because State agencies typically possess substantial discretion in deciding whether, and on what terms, to settle a lawsuit, the risk and perception exists that recently-separated officials will be able to secure better results for their private clients than less-connected persons in negotiating with State agencies.

II.

In issuing its present opinion, the Commission need not rely on Advisory Opinion Nos. 89-7 and 92-22. Unlike the situations presented in those matters, where former State employees sought approval to negotiate back-room settlements of legal disputes involving their former agencies, [the requesting individual] proposes to testify "before" a court as an expert witness in matters adverse to his former agency. Under the plain terms of Public Officers Law §73(8)(a)(i), such an appearance is truly "before" a court and does not involve appearing before an agency.

Moreover, when an expert witness testifies, the court oversees the witness's conduct, and the agency can raise objections to any improper or unethical activity by the witness. In fact, all of the expert witness's "contacts" with the agency are before the court, with a court reporter transcribing a formal record of those contacts. By contrast, such judicial supervision does not routinely occur when a recently-separated official negotiates a settlement in the offices of his old agency.

Finally, when an expert witness testifies adversely to the interests of his former agency, the witness is not seeking to exploit his contacts with the former agency. The expert is on the other side of the dispute, and the expert seeks nothing from his former agency. The expert is not likely to be involved in settlement discussions with his former agencies. There is simply no risk that the agency will give the expert any special treatment, because of his former employment with the State. To the contrary, the State's lawyer has every incentive to challenge the credibility and testimony of the expert. And, to the extent a judge or jury may credit the witness's testimony because of the witness's former position or knowledge gained from State service, the State can expose through cross examination any weaknesses in the witness's testimony.

III.

In the past, I believe the Commission has on occasion too broadly interpreted Public Officers Law §73(8)(a)(i) to limit the post-employment opportunities of low-level State employees. At the same time, in Advisory Opinion Nos. 89-7 and 92-22, we have misinterpreted this revolving door rule to permit recently-separated high-level officials to exploit their contacts and knowledge in settling major litigation with the State.

In urging the Commission to reconsider Advisory Opinion Nos. 89-7 and 92-22, I recognize the concern that State agencies, particularly the Department of Law, may have difficulty attracting staff if former officials and employees cannot appear or practice in lawsuits against the State for a two-year period after their State service. In my view, Public Officers Law §73(8)(a)(i) does not bar a former Assistant Attorney General from appearing or practicing in court (e.g., filing papers, arguing motions, or trying a case) in a matter in which his former office is appearing on behalf of a State agency.

As I see it, the line is crossed when a recently-separated officer or employee engages in conduct that is clearly and unambiguously before the agency, e.g., engaging in settlement negotiations with his former agency. In such circumstances, former officials should not be able to exploit their contacts and knowledge for the benefit of themselves and their private clients. Respectfully, I do not believe that such conduct can be squared with the text or purpose of Public Officers Law §73(8)(a)(i).

Dated: June 18, 2001


Endnotes

1. See Advisory Opinion No. 99-1 for a discussion of former agency status with respect to employees of the MTA, its affiliates and subsidiaries.

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