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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. 06-01:

Guidelines for State employees relative to employment-related communications with entities or individuals which have matters before the State employee.

Introduction

This advisory opinion is issued to provide guidance when State employees are approached by entities or individuals, which have matters under consideration by the State employee, concerning potential employment opportunities in the private sector. 1

Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") concludes that (1) State employees may not solicit a post-government employment opportunity with any entity or individual that has a specific pending matter before the State employee; and only may, 30 days from the time a matter is closed or the employee has no further involvement because of recusal or reassignment, solicit an employment opportunity; (2) State employees who receive an unsolicited employment-related communication from such an entity or individual (a) cannot pursue employment with the entity or individual or (b) must recuse themselves from the matter and any further official contact with the entity or individual and wait 30 days from such recusal before entering into post-government employment communications with the entity or individual; and (3) State employees must promptly notify their supervisors and ethics officers of such employment-related communications whether or not they intend to pursue the employment opportunity.2

 

APPLICABLE STATUTES

 

Public Officers Law §73(5) provides:


No statewide elected official, state officer or employee . . . shall, directly or indirectly, solicit, accept or receive any gift having a value of seventy-five dollars or more whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or in any other form, under circumstances in which it could reasonably be inferred that the gift was intended to influence him, or could reasonably be expected to influence him, in the performance of his official duties or was intended as a reward for any official action on his part. No person shall, directly or indirectly, offer or make any such gift to a statewide elected official, or any state officer or employee . . . under such circumstances.

Portions of the State’s Code of Ethics, contained in Public Officers Law §74, are particularly relevant to post-government employment negotiations and job offers. The provision that sets forth the rule with respect to conflicts of interest is found in subdivision (2), which reads as follows:

No officer or employee of a state agency . . . should have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties in the public interest.


Public Officers Law §74(3) recites the standards applicable to conflicts of interest for State officers and employees. Relevant to this discussion are the following subsections:

3. Standards.

a. No officer or employee of a state agency . . . should accept other employment which will impair his independence of judgment in the exercise of official duties.

b. No officer or employee of a state agency . . . should accept employment or engage in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position or authority.

. . . .

d. No officer or employee of a state agency . . . should use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others.

. . . .

f. An officer or employee of a state agency . . . should not by his conduct give reasonable basis for the impression that any person can improperly influence him or unduly enjoy his favor in the performance of his official duties, or that he is affected by the kinship, rank, position or influence of any party or person.

. . . .

h. An officer or employee of a state agency should endeavor to pursue a course of conduct which will not raise suspicion among the public that he is likely to be engaged in acts that are in violation of his trust.

DISCUSSION

Post-government employment negotiations and job offers can present difficult ethical issues for State employees. On one hand, State employees should be able to pursue employment opportunities outside of State government. On the other hand, the integrity of the government decision-making process may be jeopardized when a State employee has official responsibilities in connection with a non-governmental entity and is seeking or negotiating for employment with that entity.

The issues presented raise concerns that squarely fall within §§73(5) and 74 of the Public Officers Law. Section 73(5) prohibits public employees from receiving "any gift having a value of seventy-five dollars or more . . . under circumstances in which it could reasonably be inferred that the gift was intended to influence, or could reasonably be expected to influence him, in the performance of his official duties or was intended as a reward for any official action on his part." A "gift" includes anything of value given to a State officer or employee, including "a thing or promise, or in any other form" (emphasis added).

The Commission interprets the Legislature's broad definition of a gift to include a promise of future employment under certain limited circumstances. The promise or solicitation of future employment by an entity with an active matter before a State employee could be considered a reward for official action (or inaction) and an impermissible gift under Public Officers Law §73(5).3 Such solicitation of post-government employment also raises the appearance that the State employee’s interest with such an activity is in substantial conflict with the proper discharge of his or her duties in the public interest under Public Officers Law §74(2) and (3)(a)(b)(d)(f) and (h).4

The Commission believes that a situation in which a State employee is making a decision, the outcome of which may impact his or her future employer, contains an unacceptably high level of risk to government integrity and its decision making process. Therefore, when an entity (or individual) has a specific proceeding, application or other matter pending before a State employee, the solicitation of employment by the employee or any post-government employment-related communications with that entity (or individual) is prohibited.

Furthermore, the prohibition lasts until 30 days has elapsed since the pending matter was closed or decided or the employee has no further involvement because of recusal or re-assignment. This bright line rule and prophylactic measure - a cooling off period - is intended to avoid post-government employment negotiations that take place during and after the pending matter has been closed, since such a job offer could be perceived as a reward for official action.

Finally, the State employee is under an obligation to promptly report all such post-government employment-related communications to his or her supervisor and ethics officer.

The Commission notes that other ethics agencies, including the federal government and several states, have considered this issue and have imposed similar restrictions.5


CONCLUSION

State employees may not solicit a post-government employment opportunity with any entity or individual that has a specific pending matter before the State employee; and only may, 30 days from the time a matter is closed or the employee has no further involvement because of recusal or reassignment, solicit an employment opportunity. State employees who receive an unsolicited post-government employment-related communication from such an entity or individual (a) cannot pursue employment with the entity or individual unless they recuse themselves from the matter and any further official contact with the entity or individual and (b) wait 30 days from such recusal to enter into post-government employment communications with the entity or individual. State employees must promptly notify their supervisors and ethics officers of such job-related communications whether or not they intend to pursue the post-government employment opportunity.

This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding.

All concur:
Paul Shechtman,
Chair
Robert J. Giuffra, Jr.
Carl H. Loewenson, Jr.
Lynn Millane
Susan E. Shepard,
Members

Dated: January 23, 2006


1. The Commission has, on several occasions, issued advisory opinions that provide guidance to an entire class of State employees. See, e.g, Advisory Opinion No. 94-16, with respect to gifts; Advisory Opinion No. 98-12, with respect to running for office; and Advisory Opinion No. 05-1, concerning discounts from disqualified sources.

2. Once a State employee leaves State service, he or she must adhere to the post-employment restrictions contained in Public Officers Law §73(8)(a)(i), which prohibit the former employee from appearing, practicing or rendering services for compensation in any matter before their former agency for two years after they leave State service, and 73(8)(a)(ii), which prohibit a State employee from appearing or rendering services anywhere with regard to transactions in which they were directly concerned, personally participated or actively considered while in State service.

3. Such circumstances would exist where an entity offers a State employee a job in order to influence the employee in the performance of official duties, as a reward for his official action or where a State employee solicits a job from a disqualified source as part of a quid pro quo.

4. By example, the Commission had commenced an investigation of a State employee who had solicited employment for his adult children from a disqualified source. The Commission issued a 15 day letter citing both Public Officers Law Sections 73 and 74. The subject of the investigation shortly thereafter resigned from State service, thus divesting the Commission of jurisdiction pursuant to Flynn v. Commission, 87 NY2d 199 (1995), a loophole in the Ethics Law which was closed by the Governor and the Legislature on July 11, 2005 (See, Chapter 165, Laws of 2005).

5. See, e.g., 18 U.S.C. §208; 5 C.F.R. §§2635.601-606; West Virginia Code 6B-2-5(h); New Jersey Statutes Annotated 52:13D-17; Conn. Gen. Statutes, 1-84(b)(1); Rhode Island General Laws 36.14-5(g); and 51 Pa. Code 1103(b), (c).


 

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