|Advisory Opinion No. 97-23:||Whether the lifetime bar of Public Officers Law §73(8)(a)(ii) precludes a former State employee from selling certain computer equipment to State agencies.|
The following advisory opinion is issued in response to an inquiry from [ ], a former employee of the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"). He asks whether the lifetime bar, found in Public Officers Law §73(8)(a)(ii), precludes him from selling certain computer equipment to State agencies, including his former agency, where he had been part of a committee that recommended that OMRDD purchase [ ] computers.
Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") hereby renders its opinion that Public Officers Law §73(8)(a)(ii) prohibits [the requesting individual] from selling to OMRDD equipment to be used in connection with those computers which the agency purchased on the recommendation of the committee, as he personally participated while in State service in the purchase transaction.
[The requesting individual] was an employee of OMRDD until [date], when he retired from State service. While at the agency, he served on a committee that evaluated a number of computer brands then available to State agencies under a master procurement list maintained by the Office of General Services ("OGS"). The committee recommended the [ ] brand, and OMRDD subsequently purchased [that brand of] computers through OGS.
[The requesting individual] would now like to sell computer upgrades -- such as memory and hard drives -- to the State for use in the computers then purchased by OMRDD. He also wishes to sell replacement parts and supplies for [ ] printers that were purchased while he was employed at the agency. With respect to the computers, he states that they could initially have been purchased with more memory and larger hard drives, along with a number of other options, but these add-ons were not critical to the agency's mission at the time, and the cost would have been much higher. OMRDD decided to take the most economical route and, when needed, upgrade the systems.
In conversation with the Commission's staff, [the requesting individual] stated that, depending upon the dollar amount involved, the State might purchase the upgrades and the replacement parts through public notice and competitive bidding. Smaller purchases would be made directly through a particular vendor. He would like to sell upgrades and replacement parts under either circumstance.
[The requesting individual] argues that he should not be prohibited by the lifetime bar from selling the equipment because he did not have control over the agency's decision not to buy more memory and larger hard drives at the time of the initial purchase. He also argues that he should be able to provide replacement parts that are generic; that upgrades are purchased without regard to brand name; and that State agency ownership of computers has become so diluted over the years that it is difficult to determine the agency that initially purchased any specific computer.
In his opinion request, [the requesting individual] asks the Commission to define how the lifetime bar is to be applied in his situation.
Public Officers Law §73(8)(a)(ii) provides:
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.
The above provision, part of what are generally referred to as the "revolving door" provisions, sets the ground rules for what individuals may do with the knowledge, experience and contacts gained from public service after they terminate their employment with a State agency. It prohibits a former State employee from appearing, practicing, communicating or otherwise rendering services before any State agency or receiving compensation for services rendered in any case, proceeding, application or transaction with 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.
Since [the requesting individual] is now barred from rendering services on any "transaction" in which he personally participated while in State service, the Commission must determine the nature of the "transaction" with which the selection committee on which he served was involved. Lifetime bar cases are determined on a case by case basis. (See Advisory Opinion No. 90-22.) However, the Commission's previous formal opinions dealing with the lifetime bar can serve as guidance. In Advisory Opinion No. 91-12, the Commission held that a change in the scope and nature of a construction project after a former employee left State service does not render it a different transaction from the one in which he personally participated, as the essential nature of the transaction, the agencies involved, the property to be reconstructed and the basic concept of reconstruction did not change, and there was no significant break in project activity.
In another formal opinion, the Commission held that a former employee who worked on Phase I of a construction project could not work on later phases of the project that had been tabled for more than ten years due to budgetary constraints and which had to be redesigned due to the passage of time. The Commission held that, despite the intervening changes, the different phases of the project were all part of the same transaction. See Advisory Opinion No. 97-9.
These opinions demonstrate that a transaction is not necessarily static; that is, it may continue, even if in a somewhat modified form. (See Advisory Opinion No. 92-20, where a proposed amendment to a bill was held to be part of the same transaction as the original bill.) While [the requesting individual's] situation is different from those presented to the Commission in Advisory Opinion Nos. 91-12 and 97-9 in that he will not be involved in a construction project, the upgrading of computers originally purchased in a transaction in which he participated is, similarly, part of a continuing series of modifications. Just as the redesign of a construction project did not make it a new transaction, the upgrading of a computer is not distinct from the original purchase.
The application of the lifetime bar in this manner is consistent with the purposes of §73(8)(a)(ii). [The requesting individual] has knowledge of both the computers he helped to select and, more significantly, OMRDD's applied use of those computers, which knowledge is derived from his work at the agency. This gives him special knowledge of the needs of the agency and an advantage over potential competitors, which is exactly what the lifetime bar is intended to preclude.
Having determined that the lifetime bar is applicable to [the requesting individual's] sale of equipment to upgrade the computers, the question as to the scope of the bar must be addressed. The transaction in which [the requesting individual] participated was OMRDD's original purchase of [a particular brand of] computers. However, his special knowledge runs only to OMRDD's thinking in connection with the purchase of these particular computers. The same concern does not arise if a computer purchased by OMRDD has been transferred to another agency. Thus, his bar is only as to [the particular brand of] computers purchased and still used by OMRDD. He is not required to inquire when dealing with other agencies as to whether any particular computer may have been obtained from OMRDD.
In addition, [the requesting individual] may sell equipment to OMRDD not related to the [particular brand of] computers as long as he did not personally participate in the purchase of the particular computers in which the equipment will be used. The same principle is applicable to his desire to sell printers. Therefore, whether he can sell supplies or parts for the [brand] printers that were purchased while he served at OMRDD depends upon whether he personally participated in their purchase.
The Commission concludes that Public Officers Law §73(8)(a)(ii) prohibits [the requesting individual] from selling to OMRDD computer equipment to be used in connection with those computers which the agency bought on the recommendation of a committee on which he served, as he personally participated while in State service in the purchase transaction. [The requesting individual] may, however, sell equipment to be used in connection with computers, printers and other similar hardware where he did not personally participate in OMRDD's purchase of the hardware.
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 or related supporting documentation.
Henry G. Gossel
Paul L. Shechtman
O. Peter Sherwood
Evans V. Brewster
Dated: October 28, 1997