New York State
Ethics Commission


Advisory Opinion No. 07-02: Application of the two-year bar post-employment restrictions of Public Officers Law 73(8)(a)(i) to a former employee of the Department of Environmental Conservation who seeks to represent an applicant for a Certificate of Environmental Compatibility and Public Need pursuant to Article VII of the Public Service Law where his former agency is a party to the action.

INTRODUCTION

The following advisory opinion is issued in response to separate requests submitted by [ ] of the law firm [ ], and [ ], [ ] of the New York State Department of Environmental Conservation ("DEC"), who ask whether a former employee of DEC is subject to the two-year bar restrictions of Public Officers Law 73(8)(a)(i) when representing a private applicant for a Certificate of Environmental Compatibility and Public Need pursuant to Article VII of the Public Service Law where his former agency is a party to the action.

Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by 94(15) of the Executive Law, the Commission hereby renders its opinion that [the former State employee] may appear on behalf of a client in, or be compensated for services rendered in connection with, the adjudicatory phase of an Article VII proceeding, but may not request documents from DEC or engage in settlement or other discussions with DEC staff or attorneys before or after the Public Service Commission ("PSC") has rendered its decision.

BACKGROUND

As a former employee of DEC, [the former State employee] worked as an attorney in the Division of Environmental Enforcement until [date]. While in this position, [the former State employee] was assigned to matters pertaining to the enforcement of statutes, rules and regulations relating to the [ ] Watershed. This included negotiating Orders on Consent and conducting administrative hearings. Throughout his tenure at DEC, [the former State employee] was also assigned to cases involving waste water, water quality, storm water, wetlands, hazardous and toxic waste, solid waste, petroleum spills, pesticides, and air emissions.

Upon his separation from State service, [the former State employee] accepted a position with [the law firm]. [The law firm] currently represents [a corporation] in its application for a Certificate of Environmental Compatibility and Public Need pursuant to Article VII of the Public Service Law.

This application process seeks to obtain regulatory approval to construct and operate a high voltage direct current electric transmission line [ ]. Article VII of the Public Service Law sets forth the requirements and procedures for persons seeking such approval to construct a major utility transmission facility in the State. Under Public Service Law 126, the statute provides that the PSC must decide, based on a complete administrative record, whether to grant or deny the application subject to such terms, conditions, limitations or modifications as the PSC may deem appropriate. The PSC is the only agency authorized to grant or deny Certificates of Environmental Compatibility and Public Need, pursuant to Article VII of the Public Service Law for the construction and operation of major utility transmission facilities. No other State or municipal agency may require permits or approval for such construction or operation, except under very limited circumstances under Public Service Law 130. (1)

An application for an Article VII Certificate must include extensive information: the location of the project; a description of the proposed transmission facility; a summary and description of any studies undertaken regarding the environmental impact of the project; a statement explaining the need for the facility; a description of any reasonable alternate location or locations for the proposed facility; a description of the comparative merits and detriments of each location and a statement of the reasons why the primary proposed location is best suited for the facility; and such other information as the applicant may consider relevant or the PSC may require. After copies of the report have been made available for public inspection, the PSC will review the application to determine whether it contains sufficient information as contemplated in 122 of the Public Service Law. If found complete, the application will then be scheduled for a full adjudicatory hearing presided over by a PSC Administrative Law Judge.

As a member of the law firm [ ], [the former State employee] has been assigned to represent [the corporation] in this Article VII application procedure, along with eventual participation in the adjudicatory hearing if and when completeness has been determined by the PSC. As one of the statutory parties involved in this application process (see, Public Service Law 124), DEC has expressed a number of concerns as to [the former State employee's] involvement in representing [the corporation] before the PSC in this matter.

Specifically, DEC has asked the Commission to address the following questions:

To what extent may [the former State employee] discuss the proposed [ ] project and application with DEC staff prior to the initiation of the Article VII proceeding, i.e., before the PSC has determined the application to be complete and thus in compliance with Public Service Law 122?

To what extent may [the former State employee] participate in settlement discussions with DEC staff, or be compensated for services rendered in connection with a proposed application which are germane to such settlement discussions, prior to the application being determined complete by the PSC?

To what extent may [the former State employee] participate in settlement discussions with DEC staff, or be compensated for services rendered in connection with a proposed application which are germane to such settlement discussions, after the PSC determines the application to be complete?

May [the former State employee] appear on behalf of a client in, or be compensated for services rendered in connection with, the adjudicatory phase of an Article VII proceeding on matters pertaining to DEC's jurisdiction, including preparing and handling discovery requests, the presentation of direct testimony, the cross examination of DEC witnesses, and the preparation of briefs?

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. (2)

DISCUSSION

The Commission notes that there are several matters over which there is no dispute. Both [the former State employee] and the DEC agree that since [the former State employee] served as an attorney for the DEC prior to leaving State service, the DEC constitutes his former agency for purposes of the two-year bar, and he cannot appear or practice before or render services for compensation on matters before DEC. Both [the former State employee] and the DEC also agree that, following the Commission's Advisory Opinion Nos. 90-18 and 91-13, the PSC is not [the former State employee's] former agency, as it constitutes an entity separate from and independent of the DEC. Therefore, [the former State employee] may appear or practice before or render compensated services in matters before the PSC.

The disagreement arises because DEC argues that although the determination to grant or deny an Article VII application ultimately rests with the PSC, due to its expertise in environmental matters, DEC plays a central role in the review of an Article VII application. Accordingly, DEC argues that [the former State employee's] representation of [the corporation] constitutes a matter before the DEC as he will be required to have extensive and frequent interaction with DEC staff to complete the Article VII application process. It is DEC's position that such contact would be a direct violation of Public Officers Law 73(8)(a)(i) until [the former State employee's] two-year bar has expired.

[The former State employee's] position is that, as a former employee of DEC, his appearance is before the PSC and not a matter before his former agency. He argues that representation of his current client does not involve a case, proceeding, application or other matter or transaction which is before his former employing agency. He therefore contends that there is no violation of Public Officers Law 73(8)(a)(i) by representing [the corporation] before the PSC in its application procedure for a Certificate of Environmental Compatibility and Public Need.

In Advisory Opinion No. 95-28, the Commission held that a former attorney of the Department of Taxation and Finance ("DTF") who was representing a client before the Division of Tax Appeals ("Division") could apply to the Division for a subpoena requesting DTF documents but was prohibited from requesting documents directly from the DTF or engaging in settlement or other discussions with DTF attorneys as DTF constituted the individual's former agency.

Similarly, the Commission concludes that [the former State employee] is not permitted to discuss the proposed [project of the corporation] or application with the DEC or participate in any settlement or other discussions with DEC staff or be compensated for services rendered in connection with the application process either before, during or after the initiation of the Article VII proceeding, since the DEC constitutes [the former State employee's] former agency. However, the Commission concludes that [the former State employee] is permitted to participate in the adjudicatory phase of the Article VII proceeding as the adjudicatory proceeding is a matter before the PSC, which is a separate and independent Executive agency from that of the DEC. (3)

The Commission addressed a similar question within the context of litigation brought in a court. In Advisory Opinion Nos. 89-7 and 92-22, the Commission held that, subsequent to the initiation of litigation, a former employee of an agency may participate in the settlement of a State or Federal court action even if settlement negotiations require direct contact with the agency's staff. The logic behind these opinions is that the former employee's appearance is in the court case, which is a matter before the court, not on a matter before the former agency.

In Advisory Opinion No. 01-04, however, Commissioner Giuffra in his concurrence stated that "the reasoning of Advisory Opinion Nos. 89-7 and 92-22, [that] the filing of a lawsuit immediately lifts any restrictions on a former official's contacts with his former agency, so long as the official or employee was not personally involved in the disputed matter . . . subverts the Legislature's purpose in enacting the revolving door rule: for a two-year period, to prevent former State officers and employees, by virtue of their position in State government, from receiving preferential treatment or undue access for themselves and their private clients from their former agencies." He urged the Commission to reconsider Advisory Opinion Nos. 87-7 and 99-22.

To the extent that the present opinion is inconsistent with those earlier opinions regarding the propriety of engaging in settlement discussions with one's former agency once the matter is in court, the Commission is persuaded that the rationale to overturn the holdings in these long-standing opinions is compelling.

CONCLUSION

The Commission hereby concludes that [the former State employee] may appear on behalf of a client in, or be compensated for services rendered in connection with, the adjudicatory phase of an Article VII proceeding, but may not request documents from DEC or engage in settlement or other discussions with DEC staff or attorneys before, during or after the PSC has rendered its decision.

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

All concur:

John D. Feerick, Chair

Robert J. Giuffra, Jr.
Carl H. Loewenson, Jr.
Lynn Millane
Susan E. Shepard, Members

Dated: August 8, 2007


Endnotes

1. Public Service Law 130, "Notwithstanding any other provision of law, no state agency, municipality or any agency thereof may require any approval, consent, permit, certificate or other condition for the construction or operation of a major facility with respect to which an application for a certificate hereunder has been issued, other than those provided by otherwise applicable state law for the protection of employees engaged in construction and operation of such facility, and provided that in the case of a municipality or an agency thereof, such municipality has received notice of the filing of the application thereof."

2. 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.

3. The Commission notes DEC's concern that overlap could result between issues which are the subject of negotiation and settlement discussions and those which are the subject of testimony and cross-examination in the adjudicatory hearing. However, given the fact that the DEC, not the PSC, is [the former State employee's] former agency, he is not subject to the two-year bar restrictions of Public Officers Law 73(8)(a)(i) from appearing or practicing in matters before the PSC.


Go to Directory of NYS Ethics Commission documents

URL: http://www.nysl.nysed.gov/edocs/ethics/95-05.htm