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New York State Ethics Commission
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Advisory Opinion No. 03-4: Whether the “former agency” of [a senior official at] a State agency includes its parent agency or other affiliated agencies for purposes of applying the post-employment restrictions of Public Officers Law §73(8)(a)(i).

INTRODUCTION

The following advisory opinion is issued in response to a request submitted by the former [senior official] of the Long Island Railroad (“LIRR”), who asks how the restrictions of the Public Officers Law would affect his ability to work for a private entity after his retirement. To answer this question, the Commission must decide whether the two-year bar of the Public Officers Law §73(8)(a)(i) would preclude his appearing, practicing or rendering services for compensation before the LIRR only, or whether it should extend to its parent agency, the Metropolitan Transportation Authority (“MTA”) or the MTA’s other affiliated agencies.

Pursuant to its authority under Executive Law §94(15), the New York State Ethics Commission (“Commission”) concludes that [the requesting individual’s] former agency for purposes of the two-year bar includes the LIRR and the MTA, but does not extend to the MTA’s affiliated agencies and subsidiaries.


BACKGROUND

The question of which agency or agencies are [the requesting individual’s] “former agency” is not a simple one because of the LIRR’s relationship with its parent agency, the MTA, and the LIRR’s collaboration with other MTA affiliated agencies on various issues and projects. 1

On [date], [the requesting individual] retired from the LIRR having held the title of [a senior official] for three years; prior to that he was [a senior official in another job title]. As [a senior official], he was responsible for all managerial aspects of the company, including the operation of 770 trains per day. There is no question that the LIRR is his former agency for the purposes of the Public Officers Law.

Due to pension considerations, [the requesting individual] was placed on the payroll of the MTA during his tenure at the LIRR. While his job responsibilities related primarily to the LIRR, he had responsibilities to the MTA in two areas: (1) he was [ ] of the All-Agency Deferred Compensation (401K and 457) Plan, and (2) he was [ ]for the Excess Liability Fund (an all-agency excess liability fund).

As [a senior official] of the LIRR, [the requesting individual] oversaw major capital programs that involved working with affiliated agencies. For example, he was involved in the planning and construction of the East Side Access project, which will connect LIRR trains to Metro-North Commuter Railroad’s (“Metro-North”) base at Grand Central Station. He also participated in the planning of the renovation of the Atlantic Terminal, a project shared with the New York City Transit Authority (“TA”). This project involved joint funding and project management coordination between the LIRR and the TA for its design and construction. The LIRR also shares capital programs with other affiliated agencies, such as the purchase of ticket vending machines with Metro-North.

In addition, last year, the Chairman of the MTA announced a restructuring plan that would merge various affiliated agencies into five distinct companies under the MTA in an effort to cut costs and streamline operations. Part of the plan, which requires legislative approval, calls for the LIRR and Metro-North to become one entity, known as the MTA Railroad.

[The requesting individual] has accepted a position as [a senior official] for [ ], a private company which provides construction, maintenance and material solutions for the rail and rail-transit industries. [The private company] has two main business units:[ ]. [The private company] offers its products to private industries, public transit authorities, and railroads of all sizes. As [a senior official], [the requesting individual] will be responsible for all budgeting, treasury, and financial operations at [the private company] and its subsidiaries. He will also oversee information systems and internal auditing, and will be reporting to the [a senior official] and Chief Operating Officer. [The private company] conducts considerable business with the TA. Its subsidiary, [ ], has been involved since [date] with the [ ] Project which will centralize dispatch and train control functions for the TA.

Given [the requesting individual’s] responsibilities to the MTA and the LIRR’s involvement with the MTA’s affiliates and subsidiaries, the issue before the Commission is whether, in addition to the LIRR, the MTA or its affiliates and subsidiaries are [the requesting individual’s] former agencies for application of the two-year bar.

APPLICABLE STATUTES

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.

The lifetime bar contained in 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

These above restrictions set the ground rules for what individuals may do with the knowledge, experience and contacts gained from public service after they leave their employment with a State agency. The two-year bar prohibits former State officers and employees from appearing, practicing or rendering services for compensation in relation to any case, proceeding, application or other matter before their former agency for two years following their separation from State service. A second provision, known as the “lifetime bar,” prohibits former State officers and employees from appearing, practicing, communicating or rendering services before any State agency for compensation 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.

Public Officers Law §73(8)(a)(i) bars an employee who leaves State government from engaging in specified activities before his or her former agency or agencies for a two-year period. Generally, an individual has only one former agency, but the Commission has, in prior opinions, concluded that under certain circumstances, an employee may have more than one former agency (see, e.g., Advisory Opinion Nos. 90-22 and 90-12).

For example, in Advisory Opinion No. 95-19, the Commission considered the matter of a State agency head who, during two and a half years of his period of service at the agency, provided, on a regular basis, assistance to the Governor on issues unrelated to the agency. He was neither paid by the Executive Chamber for his work nor was he appointed to an Executive Chamber position or title. Based on the level of responsibility exercised by the individual, his regular and continuing responsibility working for the Governor and the duration of the assignment, the Commission concluded that one of the individual’s former agencies was the Executive Chamber. It noted that the revolving door restrictions apply when it can be shown that there is a “continuing service” to a State agency, even where the employee is not compensated by the agency.

In Advisory Opinion No. 95-33, the Commission considered whether officers and employees of the MTA should be considered employees of only the MTA or, alternatively, all of the MTA’s affiliated agencies for purposes of determining their former agency. The Commission held that for other than certain “senior” employees, the former agency of the MTA employees would be the MTA only.2 For senior employees, the Commission held that, “[t]he heads of the MTA’s 11 departments and the directors who are their immediate subordinates, whose current responsibilities include actively and routinely managing significant projects or matters involving one or more MTA affiliates or subsidiaries may be considered to be an employee of the MTA and the other MTA entity. This determination shall be made on a case-by-case basis.”3

In Advisory Opinion No. 99-1, the former agency of a senior MTA employee who had significant involvement with the capital programs of the TA would be the MTA and the TA, given the individual’s job responsibilities.

Applying these precedents to [the requesting individual’s] case and noting that he served as [ ] of the MTA’s All-Agency Deferred Compensation Plan and Lead Trustee for the MTA’s Excess Liability Fund, the Commission finds that [the requesting individual] provided “continuing service” to the MTA on a significant and regular basis, and therefore, the MTA, in addition to the LIRR, is one of his former agencies for purposes of the two-year bar.

Concerning the other MTA affiliated agencies, the Commission notes that [the requesting individual] from time-to-time, in his duties as [a senior official] for the LIRR, was involved with various projects and had intermittent contact with these entities. For example, the Atlantic Terminal project was shared with the TA, and [the requesting individual] was involved in its planning and the renovation. In addition, the East Side Access project involved the coordination of activities among the LIRR, Metro-North, and the TA at Grand Central Station. The Commission is also aware that the LIRR and Metro-North have been involved in joint procurements during [the requesting individual’s] tenure with the LIRR, and that the pending restructuring plan will merge these two entities.

Notwithstanding the above, the Commission finds that [the requesting individual’s] involvement in these projects does not rise to the level of “continuing service” to a State agency to warrant a finding that the post-employment restrictions extend to the affiliates. Rather, periodically and on a limited basis, [the requesting individual] worked on joint projects with some of the affiliates in his capacity as [a senior official] of the LIRR to ensure that the LIRR could effectively meet commuter needs and improve mass transit in and around New York City. [The requesting individual’s] collaboration on occasional projects with the various affiliates was beneficial to the success of the joint projects, served the affiliates’ mutual interests, and thus should not be viewed as providing a “continuing service” to the affiliates. His involvement was sporadic and was to further the interests of the LIRR. Moreover, there is nothing to indicate that [the requesting individual] was involved with each of the MTA’s affiliated agencies. In fact, it does not appear that he was ever significantly involved with the MTA’s Bridges and Tunnels or the Metropolitan Suburban Bus Authority.

Based on his functions and responsibilities as [a senior official] of the LIRR and his service as [ ] of the All-Agency Deferred Compensation Plan and [ ] for the Excess Liability Fund, the Commission concludes that the LIRR and the MTA are [the requesting individual’s] former agencies for purposes of the Public Officers Law §73(8)(a)(i) but not the MTA’s affiliated agencies.

Accordingly, the post-employment restrictions of §73(8)(a)(i) prohibit [the requesting individual] from appearing or practicing before the LIRR and the MTA, or from rendering services for compensation in any matter before these entities until [date]. This means, for example, that for the next two years he may not call the LIRR or the MTA to lobby for future contracts; influence any decision or even discuss projects, regardless of whether or not he is compensated. It also means that he may not, on behalf of [the private company], render services for compensation on a matter before the LIRR or the MTA.

[The requesting individual] should further note that the element of “appearing or practicing” has been interpreted to encompass efforts to influence a decision of his former agency or to gain information that is not generally available to the public (see, Advisory Opinion No. 99-17). Due to the stature and profile of his prior position, he should always be extremely careful regarding contacts with the LIRR and the MTA. Additionally, he is prohibited from preparing work he has reason to know or anticipate, through law, regulation or policy, will be referred to his former agencies (see, Advisory Opinion Nos. 90-21 and 97-15). Notwithstanding the above, he may appear, practice or render services for compensation before other State agencies, including the MTA affiliated agencies, during the two year post-employment period without violating §73(8)(a)(i).4

CONCLUSION

The Commission concludes that [the requesting individual’s] former agencies for purposes of the two-year bar under Public Officers Law §73(8)(a)(i) include the LIRR and the MTA.

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.
O. Peter Sherwood, Members

Dated: April 10, 2003


Endnotes

1 The other affiliated agencies of the MTA include the Triborough Bridge and Tunnel Authority (MTA Bridges and Tunnels), New York City Transit Authority, Metropolitan Suburban Bus Authority, and Metro-North Commuter Railroad.

2 In Advisory Opinion No. 95-33, the Commission addressed only the issue of the former agency of certain senior MTA employees; it did not address the issue concerning the chief executive officers of the affiliated agencies.

3 One factor that the Commission considered in reaching its conclusion is that the MTA board of directors is also the ex-officio board of directors of each of the affiliated agencies, including the LIRR.

4 [The requesting individual] is reminded of the provisions contained in the lifetime bar, which prohibits him from working on any case, proceeding, application or transaction in which he was directly concerned, personally participated or which was under his active consideration while in State service. Thus, for example, the lifetime bar would preclude him from working on the East Side Access project or the renovation of the Atlantic Terminal on behalf of [the private company] or any other potential employer.

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