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New York State Ethics Commission
Alfred E. Smith State Office Bldg.
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Albany, NY 12210


Advisory Opinion No. 04-6: Application of the two-year bar post employment restrictions of Public Officers Law §73(8)(a)(i) to a former employee of the New York City Transit Authority
(“NYCTA”) who wishes to gather data from his former agency as part of a federally funded cooperative research project.

INTRODUCTION

The following advisory opinion is issued in response to a request submitted by [ ], a former employee of the New York City Transit Authority (“NYCTA”), who asks whether the two-year bar post-employment restrictions of Public Officers Law §73(8)(a)(i) prohibit him from gathering information that is available to the public through a Freedom Of Information Law
(“FOIL”) request from his former agency, on behalf of his new employer, which is researching and documenting an assessment of hybrid-electric transit bus technology

Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission (“Commission”) concludes that Public Officers Law §73(8)(a)(i) prohibits [the former State employee] from gathering data from his former agency as it would constitute a prohibited appearance under the two-year bar.

BACKGROUND

[The former State employee] was employed as [ ], with the NYCTA in the Department of Buses. He was responsible for managing the “Clean Fuel Bus Program” which develops and deploys new technologies that will reduce exhaust emissions from the bus fleet. One of the technologies deployed during his tenure was the hybrid-electric bus. [The former State employee] recently retired from NYCTA on [date] and is now employed as a senior consultant with [a private company], a strategic environmental consulting company which provides services to transportation clients. [The private company] would like [the former State employee] to work on a project with the Transit Cooperative Research Program (“TCRP”) to research and document an “Assessment of Hybrid-Electric Transit Bus Technology”. TCRP is a governmental agency, and performs research to solve operating problems, adapts new technologies from other industries, and introduces innovations into the transit industry.

TCRP participants include transit professionals, State and local government officials, equipment and service suppliers, and research organizations. TCRP has staff that administers their research programs but also relies on voluntary oversight/review panels which include transit agency employees. The review panels define the scope of the project, choose a contractor to implement the project, and then reviews and comments on the results before they are published. Panel members serve voluntarily, without compensation. The review panel overseeing the research into hybrid electric bus technology includes a NYCTA employee.

[The former State employee] states that he would seek data from several different transit agencies in the United States as to their current experience operating hybrid buses. Data gathering would likely include telephone contacts to key agency personnel, site visits, and review of operating and maintenance information gathered by each agency. [The former State employee] states that, as one of the largest users of hybrid buses in the country, NYCTA would certainly be included in a list of transit agencies in this study.

[The former State employee] acknowledges that the data he seeks from his former agency is not directly available to the public-at-large; that is, it is not routinely posted on the agency’s website nor is it published in a press release. He claims that NYCTA has published similar information in the past in a federally funded report or in connection with an industry conference and emphasizes that NYCTA’s participation in this project is part of an industry-wide effort to disseminate objective information about new technologies for the mutual benefit of the transit industry as a whole.

The agency indicates that members of the public seeking access to NYCTA records submit a formal request to its FOIL unit housed within the NYCTA’s Law Department. Such requests are governed by the provisions of 21 NYCRR Part 1001, as well as applicable provisions of the Public Officers Law. In other instances, members of the public may directly contact various departments or divisions within NYCTA seeking maps, pamphlets, reports, etc. With respect to records which have been previously made available to other transportation agencies and trade associations and other not-for-profit organizations in the transportation arena, such as reports on equipment performance, NYCTA departments and divisions maintain discretion to make copies of such records available to members of the public, on request, without referring the request to the FOIL unit. Where departments or divisions have questions as to the propriety of a request, they would seek the advice of the FOIL unit.

[The former State employee] asks whether the revolving door restrictions preclude him from participating in this research project and, more specifically, from gathering the data from the NYCTA.

APPLICABLE STATUTE

The post-employment restrictions applicable to former State officers and employees are found in Public Officers §73(8)(a). These restrictions set the ground rules for what individuals may do with the knowledge, experience, and contacts gained from public services after they terminate their employment with a State agency.

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.

The two-year bar prohibits former State officers and employees from appearing or practicing before their former agency or receiving compensation for services on behalf of any person, firm, corporation or association in relation to any case, proceeding, application or other matter before their former agency. [1]

DISCUSSION

In Advisory Opinion No. 99-17, the Commission held that the element “appearing or practicing” before your former agency encompasses a former employee’s efforts to influence a decision of their former agency or to gain information that is generally not available to the public (see, Advisory Opinion No. 99-17).

The Commission has considered the question of whether former State employees may seek information from their former agency within the two-year proscribed period. Notably, in the context of a FOIL request, the Commission has not permitted former State employees to make a request on behalf of a client because such an appearance under Article 6 of the Public Officers Law, FOIL, would not simply be pro forma. For example, should the request be denied, the law allows for an appeal to be filed in writing and representation before the agency in order to reverse the decision. This would constitute an appearance before the agency in relation to an “application” before the agency, and is prohibited (see, §73(8)(a)(i); Advisory Opinion Nos. 97-12 and 89-7). While the former State employee is precluded from making the request, the client is not adversely affected because he or she is free to request the information.

In Advisory Opinion No. 94-6, a former employee with the New York State Division of Budget (“DOB”) asked whether he could prepare an analysis of a local revenue source for a particular locality. As part of his analysis, the former employee sought to confer with his former DOB colleagues who had intimate knowledge of the data, and who perform forecasts of similar data, but on a Statewide level. Although no official State action was required and DOB’s interest in these discussions was to ensure that its information would be used appropriately, the Commission concluded that one of the reasons the revolving door provision was enacted was to preclude the ability of a former employee to unique access to former colleagues beyond what any other forecaster could obtain, even if it is with the purpose of obtaining otherwise public information (see also, Advisory Opinion No. 94-20 where the Commission concluded that the former State employee could work on a project that will be reviewed by her former agency, but could not contact her former agency or request data from it as it would be an impermissible appearance).

In [the former State employee’s] case, the information he seeks to collect involves telephone contact with key agency personnel and the review of operating and maintenance information that is available to the public through FOIL, or which can be obtained directly from the Department of Buses at its discretion. If the agency were to require a FOIL request to obtain the requested information, [the former State employee] would be precluded from doing so for two years under Commission precedent. Moreover, according to the NYCTA, it is within the discretion of the Department of Buses of whether to require [the former State employee] to file a FOIL request. That [the former State employee] could access this data by calling key personnel at the Department of Buses without having to file a FOIL request is what the revolving door statute was designed to preclude. Therefore, he is prohibited from requesting the data as he would be submitting a FOIL request or asking the Department for its discretion to not require that he submit such a request. Either would be an impermissible appearance before his former agency.[2]

Nevertheless, the Commission notes that NYCTA’s participation in the research project is voluntary and although there is a NYCTA employee on the oversight panel, [the former State employee] is not precluded from working on the research project and gathering data from entities other than his former agency.

CONCLUSION

The Commission concludes that the two-year bar post-employment restrictions of Public Officers Law §73(8)(a)(i) prohibits [the former State employee] from collecting data from his former agency.

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
Susan E. Shepard, Members

Dated: July 13, 2004


End notes

[1] There is also a lifetime bar provision contained in Public Officers Law 73(8)(a)(ii) which prohibits a former State employee from (a) appearing, practicing, communicating or otherwise rendering services before any State agency, or (b) receiving compensation for any such 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 [the former State employee] from working on any case, application, proceeding or transaction on which he worked while in State service. The lifetime bar does not preclude [the former State employee] from advancing the overall understanding of new technologies for the benefit of the transit industry as a whole, except that he may not perform such services with respect to a particular program on which he worked while in State service.

[2] Nor may [the former State employee] direct or instruct his colleagues at [the private company] to contact his former agency (see, Advisory Opinion No. 97-1).

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