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New York State Ethics Commission
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Advisory Opinion No. 03-3: Whether the two-year bar of Public Officers Law §73(8)(a)(i) starts to run when an employee is suspended without pay from his State position.

INTRODUCTION

The following advisory opinion is issued in response to a request submitted by [ ]1, a former employee of the New York State Department of Health (“DOH”), concerning application of the post-employment restrictions contained in Public Officers Law §73(8)(a)(i) to an employee during the time in which he is suspended, without pay, from his State position.

Pursuant to its authority under Executive Law §94(15), the Commission renders its opinion that the two year post-employment restrictions of Public Officers Law §73(8)(a)(i) do not commence until an employee officially leaves State service. Additionally, employees of the Health Facilities Management Group (“HFMG”) at DOH are considered DOH employees for purposes of the revolving door provisions of Public Officers Law §73(8)(a)(i).

BACKGROUND

In [date], an investigation concerning [the requesting individual] was referred to the Commission by the Office of the Inspector General. The Commission commenced its own investigation and a 15 day letter was issued on [date], setting forth alleged violations by [the requesting individual] of Public Officers Law §74(2) and (3). Upon completion of a lengthy investigation and report, a Notice of Reasonable Cause (“NORC”) was issued by the Commission on [date], finding reasonable cause to believe that [the requesting individual] had violated Public Officers Law §74(2) and the standards of §74(3)(d), (f) and (h) on four separate occasions when he solicited a job for his wife with [a firm doing business with his agency]; when he failed to fully disclose the nature of his wife’s work to DOH while they were attempting to set up a recusal policy for [the requesting individual]; when he worked on matters in which his wife was directly involved at [the firm]; and when he gave the impression that [the firm] could unduly enjoy his favor in responding to requests from a principal of that firm concerning a matter pending before DOH on which his wife was working.

On [date], [the requesting individual] transferred from his exempt class appointed position as Director of [ ] at DOH, and returned to a Department of Civil Service classified position at the HFMG. After the NORC was issued, DOH suspended [the requesting individual] without pay from his position with HFMG as of [date]. [The requesting individual] commenced an arbitration to contest this suspension. On [date], while the arbitration was still pending before DOH, [the requesting individual] retired from State service. In an opinion and award dated [date], the Arbitrator determined that the agency Notice of Discipline was not filed within one year after the alleged misconduct occurred pursuant to §33(h) of the collective bargaining agreement, and the agency failed to demonstrate, by a preponderance of evidence, that [the requesting individual] violated §195 or §200.25 of the Penal Law, which if established, would have tolled the contractually imposed time limitation. Therefore, the Arbitrator determined there were procedural impairments for [the requesting individual’s] suspension, and restored the salary and benefits that he would have received had he not been suspended, up to the date of his retirement, [ ].

[The requesting individual] now maintains that the post-employment restrictions of Public Officers Law §73(8)(a)(i), the two-year bar, should apply from the date of his suspension, [ ], not the date of his retirement, [ ]. In the alternative, [the requesting individual] asserts that only HFMG, and not DOH in its entirety, should be considered his former agency for purposes of the two-year bar.

The statutory language setting forth the two-year bar is found in Public Officers Law §73(8)(a)(i), which 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.

These restrictions 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 former State officers and employees, for two years following their separation from State service, from (1) appearing or practicing before their former agency, and (2) rendering services for compensation on any matter before their former agency (the so-called “back room services” clause).

DISCUSSION

In Advisory Opinion No. 95-15, the Commission examined the application of Public Officers Law §§ 73 and 74 to an employee on a leave of absence, and opined that a State employee on leave without pay is still in State service, and remains in State service, for purposes of Public Officers Law §73 “until he or she either terminates employment with the State or is terminated from such employment by appropriate State action.” The Commission reasoned that, in accord with Civil Service Law §52, the post-employment provisions of §73 would not apply until such leave period is terminated, but, that until such time, all other provisions of §73, as well as the provisions of §74, would apply. This position was reaffirmed by the Commission upon reconsideration in Advisory Opinion No. 95-37.

More recently, in Advisory Opinion No. 98-4, the Commission, in applying Public Officers Law §73(4)(a) governing State employees doing business with State agencies, examined the circumstances of an employee on leave without State pay for five years, and noted at the outset, “the requesting individual remains a State employee as long as he continues on leave without pay.”

Although [the requesting individual] argues that his circumstances are distinct because his suspension was involuntary, he subsequently received all his back pay and benefits through the date of his retirement, [ ] -- the date [the requesting individual] voluntarily chose to end his State service. Prior to this date, although on suspension, [the requesting individual] was entitled to, and in fact received, all the benefits incident to State employment, including arbitration of his suspension. Had he not chosen to retire, [the requesting individual] would have been entitled to the benefit of returning to his position with HFMG, and would still be on the State payroll. Along with the benefits of State employment also run concurrent obligations, including those imposed by the Public Officers Law. In short, the appropriate measure from which to run the two-year bar is [ ], the date [the requesting individual] terminated his State service.

[The requesting individual] also argues that HFMG is a separate State agency and that, for purposes of the two-year bar, he would be barred from appearing only before HFMG, and not DOH. [The requesting individual] submits a copy of the DOH organizational chart in support of his argument.

Rather than support his argument, however, the chart demonstrates that HFMG is, as described by DOH, an organizational unit within the Department. HFMG serves under the Commissioner of Health, and has no separate agency code designation. There is nothing to indicate HFMG management makes separate employee hiring and firing determinations. To the contrary, [the requesting individual] transferred to HFMG directly from his other position with DOH. HFMG’s offices are located in the Corning Tower, in Albany, New York along with a number of other DOH offices, including its central office. Unlike Advisory Opinion No. 95-1, in which the Commission determined that the Liquidation Bureau (“Bureau”) of the Insurance Department (“Department”) was a sufficiently separate entity from the Department to justify treating it as a separate agency for revolving door purposes, the facts do not demonstrate, and [the requesting individual] has not shown, any reason to treat HFMG as anything different than what it is - one of many organizational units within DOH.2

CONCLUSION

The Commission hereby renders its opinion that the two year post-employment restrictions of Public Officers Law §73(8)(a)(i) do not commence until an employee officially leaves State service. Additionally, employees of the Health Facilities Management Group at DOH, are considered DOH employees for purposes of the revolving door provisions of Public Officers Law §73(8)(a)(i).

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.

All Concur:
Paul Shechtman, Chair
Robert J. Giuffra, Jr.
Carl H. Loewenson, Jr.
Lynn Millane
O. Peter Sherwood,
Members

Dated: February 6, 2003


Endnotes

1 The original request for an opinion of the Commission was submitted by [the requesting indivdual]. That request has subsequently been supplemented by [the requesting individual's] attorney, [ ], who has requested a formal opinion from the Commission.

2 In Advisory Opinion 95-1, the Bureau is described as an independent entity, maintaining separate offices, having the power of appointment and removal of its employees, and a separate funding source from the Department.

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