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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. 06-05

Determination of former agency for purposes
of the two-year bar; application of the lifetime bar.


Introduction

The following advisory opinion is issued in response to an inquiry from [ ], a former [employee] with Student Information and Campus Administrative System Center (“SICAS”), located at the State University of New York College at Oneonta (“SUNY Oneonta”). [The former State employee] recently left State service to join the [the company]. She has asked for a determination regarding the application of the post-employment restrictions to her present position.

Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission (“Commission”) renders its opinion that SICAS and SUNY Oneonta constitute [the former State employee’s] former agencies and, accordingly, she may not appear, practice or render services for compensation in any matter before SICAS or SUNY Oneonta until her two-year bar expires. Pursuant to the lifetime bar, she is prohibited from further modifying any application on which she worked while at SICAS if the new modification is for a SICAS member institution.

BACKGROUND

[The former State employee] previously served as [an employee] at SICAS located at SUNY Oneonta. According to its website, SICAS supports administrative computing needs for SUNY campuses that operate [ ] software, a product of [the company]. The primary function of SICAS is to serve as a liaison between the member campuses and [the company], and develop and maintain applications and enhancements to [ ]. The establishment of SICAS fulfills an agreement between SUNY and [the company], requiring SUNY to provide a liaison function to supplement the maintenance support provided by [the company]. The SICAS has no other independent, institutional status.

According to SICAS’ By-laws, it receives direction and guidance from a Governance Board, consisting of one voting member from each State-operated and community college member institution; a SUNY Systems Administration Senior Officer and the Executive Director of SICAS. The structure also includes an Executive Committee of the Governance Board; and a SICAS Operations Council comprised of the Campus Technology Advisory Committee and the Chairs of each of the Functional Areas User Groups1. According to the By-laws, the responsibility of SUNY Oneonta, the SICAS “host campus,” is to provide the Executive Director of SICAS operational and administrative support on matters related to budget, purchasing, personnel, facilities, etc. In these matters, the Executive Director of SICAS will report to the host campus Vice President for Finance and Administration, and will work closely with the host campus Director of Computing and Telecommunication Services. Employees of SICAS appear on the SUNY Oneonta payroll and receive State benefits. SICAS is funded and supported from membership fees paid by the SUNY campuses and community colleges opting to receive SICAS services2.

As a Senior Programmer/Analyst, [the former State employee] was responsible for modifications of the following [ ] software applications:

  • Dorm damage
  • Judicial incidents
  • Immunization tracking
  • SICAS Aleph Export
  • Housing preferences questionnaire for first time students
  • Automated roommate selection
  • County charge back
  • Faculty early warning letters

Software modifications are made in response to requests from the various Functional Areas User Groups who identify and prioritize requests for software enhancements and submit the request to the Operations Council. Once implemented, the software changes serve to benefit all SUNY member institutions serviced by SICAS.

In May, 2006, [the former State employee] accepted a position with [the company] and “anticipate[s] working on a variety of campus specific projects with [ ] software.” In her letter of request, [the former State employee] notes that clients, some of which may be SUNY campuses, may contract directly with [the company] outside of SICAS to develop enhancements to the baseline [ ] system and that such developments are based solely on the requirements of the contracting institution. [The former State employee] has asked the Commission for guidance regarding her post-State employment activities.

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.

Public Officers Law §73(1)(g) states:

The term "state agency" shall mean any state department, or division, board, commission, or bureau of any state department, any public benefit corporation, public authority or commission at least one of whose members is appointed by the governor, or the state university of New York or the city university of New York, including all their constituent units except community colleges of the state university of New York and the independent institutions operating statutory or contract colleges on behalf of the state.

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 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)3.

On point is Advisory Opinion No. 99-09, concerning Metropolitan Planning Organizations (“MPOs”) which are required by federal statute and serve as the conduit for the State to receive federal highway and mass transportation funds. As MPOs have no legal status of their own, a local government entity, such as a municipality, county or public transportation authority, must serve as the “host” agency for payroll and other administrative services. (See, Transportation Law §15-a.) Unlike other MPOs in the State where a local government is the host, the New York State Department of Transportation (“DOT”) serves as the “host” of the New York City area MPO. Persons retained by the New York City area MPO are placed on DOT’s payroll and subject to DOT’s time and attendance rules, and are eligible for all State benefits. They receive their assignments and take direction from an executive director who, although selected by a board of which DOT is but one of nine members, is on DOT’s payroll. For these employees, DOT was held to be their former agency and they could not appear, practice or render services for compensation before either the New York City area MPO or DOT for two years after leaving State service.

In the instant matter, SICAS is “hosted” by SUNY Oneonta. SICAS employees are on the SUNY Oneonta payroll and receive State benefits. SICAS receives program and policy direction from a Governance Board and an organizational structure made up of SUNY campus representatives. For matters pertaining to the budget, purchasing, personnel, and other operational and administrative matters, the Executive Director of SICAS reports to SUNY Oneonta’s Vice President for Finance and Administration and works closely with its Director of Computing and Telecommunication Services.

Given its precedent in Advisory Opinion No. 99-09, the Commission therefore concludes that both SICAS and SUNY Oneonta constitute [the former State employee’s] former agencies and she may not, for a period of two years, appear, practice or render services for compensation before SICAS or SUNY Oneonta.

Turning to the lifetime bar, the Commission must consider what constitutes a “transaction” for [the former State employee].

The Commission has held that knowledge and methodologies developed while an individual was in State service may be applied in new settings after the individual has left State service (see, Advisory Opinion No. 94-18). The Commission has also recognized in previous opinions that “the consideration and deliberation of multiple variables within a particular type of transaction or proceeding renders each transaction or proceeding as new, different and distinctive” (see, Advisory Opinion Nos. 95-32; 95-7 and 95-15. See also, Advisory Opinion No. 05-03 in which the Commission held that a former employee could work on the next generation of automatic fare collection systems as it involved advancements in technology which were not contemplated during his involvement in the original transaction).

In her work for SICAS, [the former State employee] modified the [ ] software applications in response to requests made by the members of the SICAS user groups. For example, she may have modified the Automated Roommate Selection application at the request of a SUNY member institution (or institutions) serviced by SICAS. [The former State employee’s] lifetime bar relates to those applications on which she worked while at SICAS. Specifically, she is prohibited from further modifying any application on which she worked while at SICAS if the new modification is for a SICAS member institution.

[The former State employee], however, is not prohibited from working on those applications if the work is for an entity not a member of SICAS. (To continue the example, she may modify the Automated Roommate Selection application for an out-of-state university, since the lifetime bar does not prohibit her from using knowledge that she developed while in State service in a new setting.) Moreover, the Commission recognizes that with the technological advancements, a “modification” of an application may be so strikingly different from what came before it as to constitute the “next generation” of [ ] software. If that should occur, the lifetime bar would not apply even if the application were one on which [the former State employee] had previously worked (see, Advisory Opinion Nos. 99-06 and 04-02 in which technological advancements contributed to the Commission’s conclusion that the matter constituted a new transaction and was not lifetime barred).

Applying the lifetime bar to computer programmers inevitably requires a case-by-case determination. The Commission nonetheless hopes that the determination in this case will give guidance not only to [the former State employee], but also to others who may be similarly situated.

CONCLUSION

The Commission concludes that SICAS and SUNY Oneonta constitute [the former State employee’s] former agency, and she may not appear, practice or render services for compensation in any matter before SICAS or SUNY Oneonta until her two-year bar expires. Pursuant to the lifetime bar, she is prohibited from further modifying any application on which she worked while at SICAS if the new modification is for a SICAS member institution.

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: August 2, 2006

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1 Members of each Board, Committee, Council, and Group are employees of their respective campuses.

2Currently 29 SUNY campuses and community colleges are members.

3 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.

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