|Advisory Opinion No. 99-01:||Determination of the former agency of a senior employee of the Metropolitan Transportation Authority who works closely on the capital programs of the New York City Transit Authority.|
The following advisory opinion is issued in response to a request by Jaye Pershing Johnson ("Johnson"), Deputy General Counsel of the Metropolitan Transportation Authority ("MTA"). She asks that the New York State Ethics Commission ("Commission") identify, for purposes of the post-employment two year bar, contained in Public Officers Law §73(8)(a)(i), the former agency of an MTA employee who performs services with regard to the New York City Transit Authority's ("TA") capital program and who will shortly be leaving State service.
Pursuant to the authority vested in it by Executive Law §94(15), the Commission renders its opinion that the individual's former agency would be both the MTA and the TA, but not the other MTA affiliates or any of its subsidiaries.
Johnson's request concerns an MTA employee who will be leaving the agency to take a position with a private consultant that provides transportation planning services for the Metro-North Railroad ("Metro-North") and the Long Island Rail Road ("LIRR"), two subsidiaries of the MTA. The consultant and the employee may, in the future, also seek to work for the TA and/or the Triborough Bridge and Tunnel Authority ("TBTA"), two MTA affiliates. Johnson's question is whether this employee, by virtue of her employment with the MTA, would be precluded by the two year bar of Public Officers Law §73(8)(a)(i) from appearing, practicing or rendering services in relation to matters before these affiliates and subsidiaries.
The employee in question is currently [title], a policymaking position in the MTA's Capital Program Department. She reports directly to the MTA's [Manager]. The [Manager] reports directly to the [Senior Manager], who reports to the Deputy Executive Director, who, in turn, reports directly to the MTA Executive Director.
The employee in question manages activities related to the development and implementation of the TA's capital program. These activities include the assessment of the TA's capital needs and the prioritization of capital projects within funding constraints. The employee also performs implementation activities, working with the TA on deciding which projects can be started and on reporting on the progress of various projects. She typically communicates on a daily basis with capital budget staff of the TA and various MTA departments, including Budget and Planning. She does not ordinarily deal directly with the contractors or consultants who are working on the TA's capital projects.
The employee also participates in the preparation and revision of the overall MTA Capital Program Plan. However, the TA's capital program is handled separately from those of the TBTA and the commuter rail subsidiaries. A different deputy director is responsible for the programs of the latter, as the TA's operations are significantly different from those of the commuter rail lines.
After the employee leaves the MTA, her new position will be Senior Transportation Planner for the consultant. She will be managing planning studies to evaluate mass transportation alternatives, including rail solutions to transportation problems, and she will perform or supervise the collection of data. She will also conduct data analysis and public outreach. The question presented to the Commission is whether she can appear before or work for the TA, Metro-North, the LIRR and/or the TBTA.
Public Officers Law §73(8)(a)(i) provides:
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.
This provision, known as the "two year bar," 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 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. Given these restrictions, it is clear that the individual in question could not appear before the MTA or render services for compensation in relation to a matter before that agency for two years after she leaves State service. The question presented is whether this bar extends to the TA, Metro-North, the LIRR and the TBTA.
Questions concerning the former agency of individuals who were employed by the MTA or one of its affiliates or subsidiaries have been considered by the Commission on several occasions. In deciding these questions, the Commission must begin its analysis with its Advisory Opinion No. 95-33. There, it concluded that most former employees of the MTA were not to be considered former employees of its affiliates or subsidiaries. However, certain officials were to be treated differently.
The chair and first vice-chair of the MTA board and the executive director of the MTA were, by virtue of their positions, to be considered officers of the MTA and all MTA system affiliates and subsidiaries. Any other officer or employee who holds a title with another MTA system entity and who actively and routinely manages significant projects or matters involving that MTA system entity were to be considered to be an officer or employee of each such MTA system entity. The heads of MTA's eleven departments and the directors who were their immediate subordinates, whose responsibilities included actively and routinely managing significant projects or matters involving one or more MTA affiliates or subsidiaries may, on a case by case basis, have been considered to be a former employee of the MTA and other MTA system entities.
Advisory Opinion No. 95-33 was based, in part, on a prior informal opinion which had specified the particular senior MTA officials who would be considered former officers and employees of both the MTA and its affiliates and subsidiaries. The holding that other former MTA employees would not be considered former employees of the affiliates and subsidiaries was premised on the concept that employees of the MTA and those of its affiliates and subsidiaries perform job responsibilities only for the particular entity by which they are employed. The Commission recognized in Advisory Opinion No. 95-33 that job responsibilities were not static. It found that since the time of the informal opinion had been issued in 1993, the job responsibilities of some MTA employees, and employees of its affiliates and subsidiaries, had transcended the particular agency where they are employed.(1)
The Commission, in more recent informal opinions, has written in response to several former employees of the MTA and/or its affiliates and subsidiaries. In each case, it examined the individual's job responsibilities while in State service. In each of those opinions, it found that the individual who submitted the request had job responsibilities limited to his or her employing agency only.
Here, the Commission must consider an MTA employee whose job responsibilities center around the TA's capital program. She "manages activities related to the development and implementation of Transit's capital program," including "assessment of Transit's capital needs and prioritization of capital projects with certain funding constraints"; she implements "activities which include concurrence with Transit on which projects can and should be started and tracking and reporting on project progress"; and she talks daily with Transit staff.
In her request, Johnson argues that these activities do not constitute actively and routinely managing significant TA projects or matters. It is her position that the employee's activities are in furtherance of the MTA's corporate purpose, as her primary contacts are within the MTA's capital program department and her work involves the implementation of policy and planning decisions made at a more senior level. While the Commission is aware that the MTA is the central planning and policy-making body for all of its entities, it cannot accept Johnson's argument that the employee in question is not routinely actively managing TA projects. She is involved with the TA in deciding which of its capital projects will go forward after assessing its needs and budget, and she follows the progress of the TA's capital projects. This places her well within the TA's decision making and oversight process.
Johnson further argues that the employee in question is not sufficiently senior to have more than one former agency. In support of this argument, Johnson looks to Advisory Opinion No. 95-33, which referred to the MTA's eleven department heads and their immediate subordinates as those who may have multiple former agencies. While the Commission made reference to those specific positions, it did not hold that they constitute the entire set of senior MTA officials that have more than one former agency.
In fact, the MTA has undertaken an internal reorganization since the 1995 opinion was issued. It is now organized along reporting lines. Those individuals who report directly to the MTA's Executive Director include the four deputy executive directors,(2) the Special Assistant to the Executive Director, the Director of Labor Relations, the MTA Police Chief and the Auditor General. The directors of various MTA operational units, in turn, report to those who report directly to the Executive Director.
Given this existing structure, former senior MTA officials who actively and routinely manage significant projects or matters involving an MTA entity ordinarily will be deemed to be former employees of the MTA and the entity. Accordingly, the employee about whom Johnson inquires would be a former employee of the TA as well as the MTA. She could not appear or render services in relation to a matter before either.
With regard to Metro-North, the LIRR and the TBTA, the employee in question has had no involvement with their capital programs, as another Deputy Director has been responsible. Thus, her two year bar would not extend to these entities.
The Commission concludes that, based upon her job responsibilities, the senior employee's former agency after she leaves the MTA will be both the MTA and the TA, and she may not appear, practice or render services in relation to a matter before either. She would not be subject to the restrictions with respect to the MTA's other affiliates and subsidiaries, including the TBTA, Metro-North, and the LIRR.
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.
Paul L. Shechtman, Chair
Robert J. Giuffra, Jr.
Henry G. Gossel
O. Peter Sherwood, Members
Dated: January 25, 1999
1. For example, in that opinion the Commission noted "[p]ursuant to the MTA chair's determination that centralized management of certain programs would provide greater consistency across agencies, as well as cost saving efficiencies, [the requesting individual's] department has contracted for and managed the MTA's art, advertising, market research and homeless outreach programs on behalf of affiliated agencies."
2. The Deputy Executive Director for Corporate Affairs and Communications; the Chief Financial Officer, the Chief of Staff, and the General Counsel.