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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. 04-5:

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 State Division of Alcoholic Beverage Control/State Liquor Authority (“SLA”) who wishes to view monthly price schedules which are filed by manufacturers and wholesalers with the SLA pursuant to Alcoholic Beverage Control Law §101-b and which are available for public inspection at the offices of the SLA.


INTRODUCTION

The following advisory opinion is issued in response to a request submitted by [ ], a former employee of the New York State Division of Alcoholic Beverage Control/State Liquor Authority (“SLA”). [The former State employee] asks whether the two-year bar post-employment restrictions of Public Officers Law §73(8)(a)(i) prohibit him from viewing the required monthly price schedules which are filed by manufacturers and wholesalers with the SLA pursuant to Alcoholic Beverage Control Law §101-b. These monthly price schedules are, by statute, available for public inspection at the offices of the SLA.

Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission (“Commission”) concludes that entering the public waiting area of the SLA offices to view price schedules which are, by statute, available for public inspection is not an appearance prohibited by the two-year bar post-employment restrictions of Public Officers Law §73(8)(a)(i).

BACKGROUND

[The former State employee] was employed for [ ] years by the SLA as an investigator. His duties included the investigation of alleged violations of the Alcoholic Beverage Control Law and, specifically, the investigation of wholesalers. He retired on [ ].

[The former State employee] would like to open a business which would assist liquor and wine licensees/retailers in the purchase of alcoholic beverages by reviewing the monthly price schedules which are filed by manufacturers and wholesalers with the SLA pursuant to Alcoholic Beverage Control Law §101-b.

Alcohol Beverage Control Law §101-b provides, in part, that no brand of liquor or wine shall be sold to or purchased by a wholesaler or a retailer unless a schedule is filed with the SLA on or before the 25th day of each month, and the prices and discounts set forth therein become effective on the first day of the second succeeding calendar month and shall be in effect for that month. Such schedules must include, with respect to each item, the exact brand or trade name, capacity of package, nature of contents, age and proof, the number of bottles contained in each case, the bottle and case price to wholesalers, the net bottle and case price paid by the seller, which prices, in each instance, shall be individual for each item and not in combination with any other item, the discounts for quantity, if any, and the discounts for time of payment, if any. Such brand of liquor or wine shall not be sold except at the price and discounts in effect unless prior written permission of the authority is granted upon good cause shown. All schedules filed shall be subject to public inspection and shall not be considered confidential.

[The former State employee] states that these price postings are placed into a cabinet in the public waiting area of the SLA offices for review by the public. It is not necessary to file a Freedom of Information Law (“FOIL”) request or otherwise seek agency permission to view these documents. The price schedules are voluminous and complicated, and licensees, therefore, need assistance in analyzing these schedules. He asks whether he may review these records in the public waiting area of the SLA offices on behalf of licensees.

Commission staff issued an informal, non-binding advisory opinion on June 3, 2004, concluding that the two-year bar post-employment restrictions of Public Officers Law §73(8)(a)(i) do not prohibit [the former State employee] from entering the public waiting area of the SLA offices to view price schedules which are, by statute, available for public inspection. Staff noted, however, that the Commission had not had the opportunity to determine in the context of a formal opinion whether a former State employee could enter the premises of his or her former agency to view publicly available documents in the same manner as any member of the public (cf, Advisory Opinion Nos. 97-1294-6, and 89-7, in which the Commission held that former State employees could not, within the two year period, make a Freedom of Information Law request to their former agencies on behalf of a client). The informal opinion concluded by advising [the former State employee] that the matter would be presented to the Commission for its consideration.

APPLICABLE STATUTE

The post-employment restrictions applicable to former State officers and employees are found in Public Officers Law §73(8)(a). 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 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, for two years following their separation, 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). [The former State employee] may not, for example, meet with SLA employees or draft and submit documents to the agency for its review or approval during his two-year post-employment period.1 Indeed, it is not necessary for the former agency to know that the former employee is working on the matter for there to be a violation (see, Advisory Opinion No. 90-7).

DISCUSSION

The purpose of revolving door provisions, in general, “is to prevent former government employees from unfairly profiting from or otherwise trading upon the contacts, associations and special knowledge that they acquired during their tenure as public servants” [Forti v New York State Ethics Commission, 75 NY2d 596 (1990)]. As noted by the Court of Appeals, the underlying premise is that former officers and employees should not be permitted to exercise undue influence over former colleagues, still in office, in matters pending before their former agencies, as this would be a form of unfair advantage.

In the instant case, [the former State employee] seeks, as any member of the public could, to enter the public waiting area of the SLA offices to view price schedules which are available for public inspection. [The former State employee] states that these documents are placed in a cabinet in the public waiting area of the SLA offices. In these circumstances, [the former State employee] would not in any way exercise undue influence over his former colleagues who are still employed by the SLA. His status as a former employee within the two-year period would not gain him any special advantage, as the price schedules are available, by law, for public inspection.2

Notwithstanding the above, [the former State employee] must be careful not to engage in any other prohibited activities before his former agency within his two year period, and the permission granted herein is limited to his request to review the public documents that are maintained in the public waiting room of the SLA.

CONCLUSION

The Commission concludes that the two-year bar post-employment restrictions of Public Officers Law §73(8)(a)(i) do not prohibit [the former State employee] from entering the public waiting area of the SLA offices to view price schedules which are, by statute, available for public inspection.

[The former State employee] is cautioned, however, that this ruling is limited to the specific facts of his request to review the public documents that are maintained in the public waiting room of the SLA, and that he must take care not to engage in any other prohibited activities before his former agency within his two year period.

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. Although it does not appear to be implicated in this case, there is also a lifetime bar provision contained in Public Officers Law §73(8)(a)(ii) which 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 [the former State employee] from working on any case, application, proceeding or transaction on which he worked while in State service.

2. The result would be different if [the former State employee] were obligated to file a Freedom of Information Law (“FOIL”) request (see, Advisory Opinion Nos. 97-12 and 89-7 ). The Commission’s precedent regarding FOIL is based upon the fact that a FOIL request is an “application” within the definition of the statute and the concern that a former State employee’s status as a former employee could grant him special treatment in the handling of the application.

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