|Advisory Opinion No. 95-40:||Whether the lifetime bar of Public Officers Law §73(8)(a)(ii) precludes a former attorney from testifying as to general industry standards.|
The following advisory opinion is issued in response to a request from [ ], a former Assistant Attorney General who served as [ ] of the [ ] Bureau in the Department of Law, who asks whether the lifetime bar of Public Officers Law §73(8)(a)(ii) precludes her from testifying as an expert in a civil RICO action about the standards in the industry with respect to charitable solicitation practices, the conduct of professional fundraisers toward charities for whom they raise funds and similar topics.
Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by Executive Law §94(15), the Commission hereby renders its opinion that the lifetime bar does not preclude [the requesting individual] from testifying as she has requested, but she may not testify with respect to the facts in the case or as to whether the defendant met or did not meet the general standards she describes.
[The requesting individual] has informed the Commission that she formerly served as [ ] of the [ ] Bureau of the Attorney General's office, where she supervised the investigation of a professional fundraiser that conducts nationwide direct mail fundraising and six charities which employed the fundraiser to conduct charitable solicitations in New York. She also supervised litigation, brought by the Attorney General's office as a result of the investigation, where the complaint alleged fraudulent charitable solicitation, filing of misleading reports with State authorities, and a variety of other claims. The litigation was settled prior to trial.
One of the six charities that was a defendant in the [ ] Bureau's lawsuit has now sued the fundraiser in a civil action brought pursuant to the federal RICO statute. One of the lawyers for the plaintiff charity has asked [the requesting individual] to serve as an expert witness. [The requesting individual] believes that the charity wants her to testify as to "the standards in the industry with respect to charitable solicitation practices, the conduct of professional fundraisers toward charities for whom they raise funds, and similar topics." Her understanding of the case, based upon a description of the complaint, is that the plaintiff claims that the fundraiser engaged in a racketeering scheme by designing fundraising campaigns which were meant to enrich the fundraiser rather than to raise money for the charity's programs.
[The requesting individual] notes that she has been asked to give expert testimony with respect to fundraising practices generally, but not with regard to the cases she supervised as [ ] of the [ ] Bureau, and she asks whether the lifetime bar would preclude her from so testifying.
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.
This subdivision, commonly known as the lifetime bar, prohibits [the requesting individual] from participating in any "case, proceeding, application or transaction" in which she personally participated or which was under her active consideration while in State service.(1) Clearly, she personally participated in the investigation and litigation concerning the fundraiser while in the Attorney General's office. It is also clear that the RICO action and the litigation [the requesting individual] supervised arose out of the same transaction--the fraudulent charitable solicitation scheme. Consequently, she would be barred from receiving compensation for her testimony about the scheme. The question facing the Commission is whether [the requesting individual]'s testimony, if it were limited to the subjects of industry standards and the conduct, in general, of professional fundraisers toward their clients, would be distinct from the common transaction about which she may not testify.(2)
In Advisory Opinion No. 90-3, the Commission considered a former employee who wished to prepare a generalized report to be used by potential applicants to his former agency. The Commission said he could prepare such a report, noting that "it is not the Commission's view that the law is intended to preclude a former employee from ever utilizing the expertise gained while in State service." It went on to note that
[t]he 'revolving door' provision would not prohibit him. . .from publishing a book, holding public seminars, writing commentaries on the law or teaching in a university setting to disseminate the same information for compensation. The information he has obtained as to how the former State agency operated or what they expect when someone does appear before them is generic information, even though obtained while the individual was employed at the agency. . . The 'revolving door' limitation is not meant to limit a former employee from sharing general knowledge on the operation of his or her former State agency with anyone--even if that does result in compensation received.
In Advisory Opinion No. 94-18, the Commission had the opportunity to analyze whether a former employee's use of a methodology he developed while in State service constituted the same transaction as that he wished to use as a consultant. It looked to Advisory Opinion No. 94-9, where a former employee who had developed a management evaluation technique while in State service was permitted to utilize that technique while acting as a consultant to his former agency. The Commission held in Advisory Opinion No. 94-18 that the former employee could use the methodology in his post employment work, noting that "the development of a non-confidential methodology by a State employee should not act as a lifetime barred transaction and prevent the employee from applying that methodology to other uses after he or she leaves State service." The Commission distinguished the general use of the methodology from its application to the specific programs on which the former employee had worked. It held that the lifetime bar precluded the former employee's work on these programs, and that he could not, as a consultant, apply the methodology to them. The same methodology applied to the same program was the same transaction.
Similarly, in Advisory Opinion No. 91-2, the Commission held that the lifetime bar does not prevent a former employee from rendering advice for compensation based upon his understanding of the historical strategy and intent of his former agency. However, it barred him from advising as to the specific application of the strategy to specific transactions on which he worked, saying:
The former employee's understanding of historical strategy and intent of the [public benefit corporation] is general knowledge which he received while employed at the [agency] and it could be utilized by any party (not only the [public benefit corporation]), provided that the advice does not refer to specific transactions in which the individual personally participated and was directly concerned or specific transactions which were under his active consideration. . .The former employee could explain what the [public benefit corporation] did in the past if this information refers to the [public benefit corporation's] general policies and procedures and not to specific transactions in which the former employee personally participated. . .
Based on these opinions, the Commission concludes that [the requesting individual] may testify as an expert in the RICO lawsuit with respect to industry standards regarding charitable solicitation practices and the general conduct of professional fundraisers toward charities. In doing so, [the requesting individual] would be calling upon the general knowledge she gained from her years as [ ] of the Attorney General's [ ] Bureau. However, she must be extremely careful not to testify about the facts in the case, as they relate directly to the work she did as [ ], nor may she testify as to whether the defendant in the case met or did not meet the general standards she describes. Such testimony would constitute the application of general knowledge to a transaction on which she worked, and is barred by Advisory Opinion Nos. 91-2 and 94-18.(3) While this is a close case, and the line has been carefully drawn, the Commission is prepared to permit her to testify as she requested knowing that her testimony will be recorded and is subject to review by the Commission.(4)
The Commission concludes that the lifetime bar does not preclude the former [ ] of the [ ] Bureau of the Attorney General's office from testifying as an expert witness in the litigation described. Her testimony must be limited to a discussion of industry standards with respect to charitable solicitation practices, the conduct of professional fundraisers towards charities for whom they raise funds, and similar topics. She may not testify with respect to the facts in the case nor as to whether the defendant met or did not meet the general standards she describes.
This opinion, until and unless 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.
Joseph M. Bress, Chair
Angelo A. Costanza
Robert E. Eggenschiller, Members
Dated: December 19, 1995
1. See Advisory Opinion No. 89-7, which held that the lifetime bar applies to preclude a former employee from receiving compensation in any Federal or State court proceeding on a case, application, proceeding or transaction in which the former employee was either directly concerned and personally participated or which the employee actively considered during State service.
2. She is not barred by the same case or proceeding restriction, as the RICO action is different from any case or proceeding in which she participated while in State service.
3. If she were subpoenaed and testified without an expert fee, she could testify without limitation. See Advisory Opinion No. 94-19.
4. If she is retained as an expert, she may wish to consider including the restrictions imposed by this opinion in the retainer agreement. It would clarify matters at the outset of her engagement.