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Advisory Opinion No. 88-1

STATE OF NEW YORK
STATE ETHICS COMMISSION

Advisory Opinion No. 88-1:

Application of §73(8) of the Public Officers Law, on and after January 1, 1989, toState officers and employees who terminate prior to January 1, 1989.

INTRODUCTION

The following advisory opinion is issued in response to several requests which have raised thesame or similar questions. The question is whether the post-employment restrictions set forthin the recently amended §73(8) of the Public Officers Law will be applied to State officersand employees who have terminated employment from a State agency prior to January 1, 1989 --the effective date of §§2 through 16 and §§18 and 19 of the Ethics inGovernment Act of 1987.1

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 thepost-employment restrictions of §73(8) of the Public Officers Law will be applied toofficers and employees who leave or have left employment with a State agency prior to January1, 1989. 2 However, §73(8) will be applied only to thosepost-employment activities engaged in on and after January 1, 1989.

The Commission's opinion in this regard is supported by the express language of the Ethics inGovernment Act of 1987, certain fundamental principles of statutory interpretation and otherconsiderations indicating the Legislature's intent with respect to the application of the recentlyamended §73(8).

And, because of the general question of statutory interpretation and application of §73(8)involved in this opinion, the Commission states that it will apply this advisory opinion to anysimilar request and to any complaint alleging a violation of the amended §73(8) on andafter its effective date.

DISCUSSION

A. The Newly Established Post-employment Restrictions

As enacted on August 7, 1987, pursuant to §2 of Chapter 813 of the Laws of 1987, the newsubdivision 8 of §73 of the Public Officers Law provides, in relevant part, as follows:

No person who has served as a state officer or employee shall within a period of two yearsafter the termination of such service or employment appear or practice before such stateagency or receive compensation for any services rendered by such former officer or employeeon behalf of any person, firm, corporation or association in relation to any case, proceeding orapplication or other matter before such agency. No person who has served as a state officer oremployee shall after the termination of such service or employment appear, practice,communicate or otherwise render services before any state agency or receive compensation forany 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 withrespect to which such person was directly concerned and in which he personally participatedduring the period of his service or employment, or which was under his or her activeconsideration . . . .

This subdivision is generally referred to as the "revolving door" provision, for it sets theground rules for what individuals may do with the knowledge, experience and contacts gainedfrom public service after they terminate their employment with a State agency. In short,subdivision 8 of §73, as amended, bars former State officers and employees for two yearsafter termination from appearing or practicing before their former agencies or receivingcompensation for any services rendered in relation to any case, proceeding, application orother matter before such agency. Subdivision 8 also permanently prohibits former Stateofficers and employees from appearing, practicing, communicating or otherwise renderingservices or receiving compensation for such services in relation to cases, proceedings,applications or transactions in which the employee was directly concerned and personallyparticipated or which were under his or her active consideration. 3

The enactment of this new "revolving door" provision is part of a sweeping reform inNew York's conflict of interest and financial disclosure laws that is intended "to restore publictrust and confidence in government." (Governor's Memorandum, On Approving Chapters 813and 814 of the Laws of 1987.) The new subdivision 8 of §73 can be said to reflect thesame intent expressed by Congress when it enacted the federal restrictions on post-employmentactivities--that "[f]ormer officers should not be permitted to exercise undue influence overformer colleagues, still in office, in matters pending before the agencies [and] they should notbe permitted to utilize information on specific cases gained during government service for theirown benefit and that of private clients. Both are forms of unfair advantage." 4

B. The Effective Date of §73(8)

Section 26 of Chapter 813 of the Laws of 1987 expressly provides that the newsubdivision 8 of §73 of the Public Officers Law, along with certain other amendmentsenacted by that Chapter, shall take effect on January 1, 1989,

. . . provided, however, that . . . the provisions of subdivisioneight of section seventy-three . . . with respect to legislative employees shall apply only tosuch employees who terminate their service or employment on or after January first,nineteen hundred eighty-nine . . . . (emphasis added)

Section 26 of Chapter 813 clearly does not restrict the application of the new post-employmentprovisions to State officers and employees or members of the Legislature inthe same manner as it does for legislative employees. It must be noted that both Stateofficers and employees and members of the Legislature are covered by the samesubdivision 8 which covers legislative employees. Nowhere in the Act is an exceptioncarved out for State officers and employees who terminate their employment prior toJanuary 1, 1989. Only with respect to legislative employees is such an exceptionprovided. On its face, therefore, §73(8) applies, as of January 1, 1989, to all former Stateofficers and employees regardless of their termination dates.

This interpretation of the Act is consistent with the principle that ". . . the specificmention of one person or thing [in a statute] implies the exclusion of other persons orthing[s]." In other words, ". . . where a law expressly describes a particular act, thing orperson to which it shall [or shall not] apply, an irrefutable inference must be drawn thatwhat is omitted or not included was intended to be omitted and excluded." 5

Application of this principle compels the conclusion that State officers and employees whoterminate their employment with a State agency both prior to and after January 1, 1989,were intended to be covered by the "revolving door" restrictions of §73(8).

Had the Legislature intended §73(8) to apply only to State officers and employees whoterminate their employment after January 1, 1989, the Act would have so provided, as itdid with respect to legislative employees. 6 In the absence of any suchexpressprovision, it must be concluded that former State officers and employees who haveterminated their employment prior to January 1, 1989, were intended to be covered by thenew §73(8) as to their activities on and after January 1, 1989.

Indeed, a contrary interpretation would lead to an unreasonable result. If §73(8) weredetermined to be inapplicable to State officers and employees who terminated theiremployment prior to January 1, 1989, then no post-employment restrictions would applyto such persons after that date. An analysis of the existing law and its implied repeal bythe Ethics in Government Act of 1987 illustrates the reasoning for this conclusion.

Under current law, the post-employment conduct of former State officers and employeesis governed by the provisions of existing §73(7). That subdivision contains a two-year baron the appearance before a State agency or the receipt of compensation for any servicesrendered by a former State officer or employee ". . . in relation to any case, proceeding orapplication with respect to which such person was directly concerned and in which hepersonally participated during the period of his service or employment . . . ." EffectiveJanuary 1, 1989, however, the existing subdivision 7 of §73 is renumbered and amendedin the manner provided by the new subdivision 8.

That the post-employment restraints contained in the new §73(8) are more restrictive thanthose provided under the existing §73(7) is clear. Existing §73(7) was substantiallyamended by the Ethics in Government Act. Such a substantial amendment must be seenas an implied, if not actual, repeal of any prior inconsistent provisions. 7

Where the net effect of the amendment to subdivision 7 is a repeal of that subdivision andwhere the former §73(7) does not survive past January 1, 1989, a determination thatemployees who leave before January 1 are not covered by the new subdivision wouldresult in a conclusion that no "revolving door" provision would apply after January 1,1989, to those State officers or employees. Considering the purpose of the new Ethics inGovernment Act, such a result could not have been intended without specific language tothat end.

Therefore, reading the Ethics in Government Act as a whole, together with the presentand new "revolving door" provisions, it must be concluded that the post-employmentrestrictions contained in the new §73(8) were intended to apply to all former State officersand employees, regardless of the dates on which they terminate their employment with theState. 8

Application of the lifetime and two-year proscriptions contained in the new §73(8) to Stateofficers and employees who leave or have left their State agency prior to January 1, 1989,is, in the opinion of the Commission, neither arbitrary nor discriminatory. There is arational basis for enacting the "revolving door" provision and for applying it to Stateofficers and employees regardless of their termination dates from State service. And,given the compelling interest which the State has in preventing conflicts of interest or theappearance of such conflicts, this conclusion as to the intent of the Legislature to coverindividuals who have terminated their State employment prior to January 1, 1989, is, tothe Commission, constitutionally sound.

Public events need not be recounted here to point out that the Ethics in Government Actwas enacted to restore the confidence of the public in its government and to assure thatpublic employees do not use their "inside" information and contacts to their ownadvantage or the advantage of their private clients or employers. The new "revolvingdoor" provision is a reasonable restriction intended to achieve a proper legislative purposeand is a legitimate exercise of the State's power to enact laws for the general welfare ofthe public. See, for example, Adamec v. Post, 273 N.Y. 250 (1937) and Baker v. Regan,68 N.Y. 2d 335 (1986). 9 Moreover, in the Commission'sopinion, the application of the new §73(8) to persons who terminate prior to January 1,1989, does not amount to an ex post facto law. See United States v. Nasser, 476 F. 2d 1111 (7thCir. 1973).

The Commission believes that application of the new §73(8) to all former State officersand employees regardless of their termination dates effectuates the intent of theLegislature in enacting the Ethics in Government Act and is responsive to the compellinginterest of the public in limiting the use by former State officers and employees ofconfidential information and contacts acquired while in office for their own or others'personal gain after leaving the State's employment.

To avoid any question as to when the "count" for the two-year restriction contained in§73(8) begins, it is the Commission's determination that the two-year period willcommence on the date that the State officer or employee terminates or terminatedemployment with his or her State agency. Therefore, for those State officers oremployees who leave or have left State service before January 1, 1989, the two-yearrestriction under the new §73(8) would be for that period of the two years which remainson and after January 1, 1989.10

Finally, there has been some question as to what activities may be engaged in by Stateofficers and employees who have terminated before January 1, 1989, if the new §73(8)applies to them on and after that date. It is the opinion of the Commission that, where thepresent §73(7) permits certain appearances or practices before January 1, 1989, thoseappearances or practices not permitted under the new §73(8) on and after January 1 cannotbe continued or pursued after that date. Therefore, after January 1 those officers andemployees will be prohibited from appearing, practicing or receiving compensation forany services rendered in relation to any case, proceeding, application or any other matterbefore their former State agency for the balance of the two-year period from the date oftheir termination. After the two-year period has elapsed, the lifetime bar contained in thenew §73(8) would apply.

Where specific questions remain as to the coverage of §73(8) to facts and circumstancesnot covered by this Opinion, individuals subject to §§73, 73-a or 74 of the PublicOfficers Law may seek an advisory opinion from the Commission.

All concur:

Elizabeth D. Moore, Chair

Joseph J. Buderwitz, Jr.
Angelo A. Costanza
Norman Lamm
Robert B. McKay, Members

Dated: November 21, 1988

Endnotes

  1. The Ethics in Government Act was enacted pursuant to Chapter 813 of theLaws of 1987. Sections 2 through 16 of Chapter 813, effective January 1, 1989, add §73-ato the Public Officers Law, §94 to the Executive Law, §80 to the Legislative Law,§§810, 811, 812 and 813 to the General Municipal Law, amend §§73,76, 78 and 88 of the Public Officers Law, §166 of the Executive Law, and§§806 and 808 of the General Municipal Law, and repeal former §80 of theLegislative Law and §88(2)(d) of the Public Officers Law.
  2. The terms "State officer and employee" and "State agency" are used asdefined in §73(g) and (i) of the Public Officers Law.
  3. The new post-employment restrictions contained in §73(8) of thePublic Officers Law are similar to those enacted by Congress in 1978 for certain former officersand employees of the Federal Government. The latter post-employment restrictions arecodified in 18 U.S.C. §207.
  4. 1978, U.S. Code and Administrative News, p. 4247.
  5. This is the time-honored maxim expressio unius est exclusioalterius. McKinney's Statutes, §240. That section, additionally, states that ". . .unless it indicates a different intent, a statute naming several classes of persons to be benefitedthereby, will not be construed to benefit others."
  6. It is worth noting, in this connection, that the United States Congress, inenacting the federal Ethics in Government Act of 1978, specifically addressed the applicability ofthat Act's post-employment restrictions to individuals leaving government service prior to July1, 1979, the effective date of that Act. Section 502 of Pub.L. 95-521 expressly providedthat the more restrictive post-employment restraints established by the Act would "notapply to those individuals who left Government service prior to the effective date of theamendments [July 1, 1979] . . . ." Former employees who terminated theiremployment with the Federal Government prior to the effective date of the Act wereintended to be covered by the former, less restrictive provisions of 18 U.S.C. §207. SeeS. Rep. No. 170, 95th Cong., 1st Sess., p. 49 (1977).
  7. No similar expression of legislative intent is found in the newly amended §73 of thePublic Officers Law, in Chapter 813 of the Laws of 1987 or in the legislative history ofNew York's new Ethics in Government Act.

  8. Under basic principles of statutory construction, by enacting anamendment of a statute changing its language, the Legislature is deemed to have intended tomaterially change the law. The provisions of the old law which are inconsistent with the newlaw are impliedly repealed. In the enactment of the new subdivision 8 the Legislature did notenact a savings clause to provide statutorily, nor indicate in any legislative history, that thecoverage of employees who left before January 1, 1989, would be continued under thepresent subdivision 7. Where no savings clause exists, the repeal of a statute wipes outthe law as if it never existed. See, McKinney's Statutes, §§193, 194 and 411. Seealso, footnote 5, supra, where Congress did provide such a savings clause and expression oflegislative intent with respect to certain federal employees.
  9. The historical development of the Ethics in Government Act of 1987 alsocompels this conclusion as to the intent of the Legislature. In 1986 the Assembly passed a bill[A.11547] to amend §73 of the Public Officers Law. That bill contained an effective dateof January 1, 1987, without limitation. In that same year the Senate introduced a bill atthe request of the Governor to amend §73. That bill proposed an effective date of theJanuary 1 next succeeding its enactment without any other limitation. Neither bill passedboth houses.
  10. In 1987, an ethics bill [S.4661], which was passed by both houses of the Legislatureand vetoed by the Governor, contained an effective date of January 1, 1989, with thelimitation that the proposed post-employment restrictions would apply only to thoselegislative employees who terminated their employment on and after January 1. The billwhich became law, S.6441, contained the same effective date with the same limitation forlegislative employees. Tracing this history, it is clear that the intent of the Legislaturewas to only restrict the application of the "revolving door" provisions to legislativeemployees who terminated on and after its effective date and not to so limit its applicationfor the other persons covered by the same subdivision 8.

  11. Further, it must be pointed out that the Ethics in Government Act wassigned into law on August 7, 1987. The ability to minimize any impact of the new law, whateverone might consider that impact to be, existed for almost two years.
  12. As an example, if a State officer or employee terminates service at theend of business on June 30, 1988, that officer or employee will have completed a six-monthperiod after his or her termination on December 31, 1988, and will have only one and one-halfyears of the two-year period left under the new §73(8).