|Advisory Opinion No. 99-07:||Application of §73(8)(a)(i) of the Public Officers Law to a former employee performing "back room" work on an [ ] plan submitted to the former agency.|
The following advisory opinion is requested by [ ], the Assistant Attorney General in [ ] the [ ] Bureau ("Bureau") of the Department of Law ("Department"), who asks whether the post-employment restrictions contained in Public Officers Law §73(8)(a)(i) would prohibit his performing certain "back room" services in connection with [ ] plans that would be submitted to the Department.
Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by §94(15) of the Executive Law, the Commission renders its opinion that the two year bar would preclude [the requesting individual], within two years of his leaving the Department, from assisting in the preparation of [ ] plans that will be submitted to his former agency.
[The requesting individual] is the Assistant Attorney General in [ ] the Bureau of the Department. The Bureau administers that part [ ] of the [ ] Law that covers [ ]. The Bureau also prosecutes sponsors who make fraudulent claims or fail to make proper disclosure under the antifraud provisions of [ ] Law [ ].
[The requesting individual] asks whether the two year bar would prohibit his preparing an [ ] plan to the Department where another attorney would actually make the submission. He argues that the two year bar was intended to prevent former employees from exploiting their contacts and experience with the former agency, and that he would not exploit those contacts because he would have no direct contact with his former agency. He further argues that as a former employee with extensive knowledge of the applicable regulations, he would make a fuller disclosure of material terms which further advances the public's interest. He states that he possesses no insider information other than the safe harbor of full and fair disclosure. In addition, [the requesting individual] states that because he would have no contact with the Department and that the Department would not even be aware of his assistance in preparing the [ ] plan, there is no chance that he or the [ ] plan would receive preferential treatment. Lastly, [the requesting individual] argues that he would not be able to use his specialized knowledge as there is no other entity other than the Department that has jurisdiction over [ ] plans.
In sum, [the requesting individual] argues that by allowing him to work on an [ ] plan without having any contact with the Bureau would fulfill the purpose of the two year bar, benefit the public and permit him to work in the field for which he has specialized knowledge.
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 subdivision, part of what is generally referred to as the "revolving door" provision, 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. As it has often been stated, the "evil to be avoided" by the post-employment restrictions is the misuse by a former employee of knowledge and contacts to the benefit of a private client.(1)
Public Officers Law §73(8)(a)(i) precludes a former State employee from appearing, practicing or rendering services in relation to a matter before his or her former agency. The term "appearance" has been broadly construed by the Commission. It includes a physical appearance, as well as various types of submissions which are signed by a former employee or which involve identifying matter specific to the individual.(2) For example, the Commission has held that submission of a permit application, a grant application, a contract proposal or a professional stamp or seal constitutes a prohibited appearance.(3)
The Commission has also held that a former employee who assists a client in the preparation of documents for submission to his or her former agency would violate §73(8)(a)(i) even if the individual's participation is totally unknown to the former agency.(4) Such assistance would constitute the rendering of services for compensation in relation to a matter before the former agency.
Thus, for example, in Advisory Opinion No. 97-15, the Commission held that a former employee of [a State agency] was prohibited from assisting clients in the preparation of applications for liquor licenses regardless of whether his name appears on the application, as such assistance would cause him to render services in relation to a matter before [the former agency]. The Commission held that the two year bar would be violated because he was in a position to use his special knowledge of the agency and the contacts that he may have there in preparing applications which were matters before his former agency. (See also Advisory Opinion No. 94-5 where the Commission held that it would be a violation of Public Officers Law §73(8) for a former employee to receive compensation for reviewing the former agency's files, even off agency premises, with regard to cases before the former agency.)
[The requesting individual] argues that the Commission's Advisory Opinion No. 95-24 supports his position. In that opinion, the Commission permitted a former assistant attorney general to prepare a franchise prospectus under the Uniform Franchise Offering Circular that would be submitted to franchise regulators in fifteen States, including New York, and also to prepare contracts that are submitted to the Department as exhibits to prospectuses. Under the circumstances, the Commission held that he would not be rendering services in a specific matter before the Department but, rather, would be rendering services in a matter that is before several states, only one of which is New York. More importantly for purposes of analyzing [the requesting individual's] request, the Commission held that the assistant attorney general could not prepare any part of a prospectus that is New York State specific as to do so would cause him to render services for compensation on a matter before the Department.
In this circumstance, [the requesting individual] would not be preparing documents for submission to several states. Rather, he wishes to prepare an [ ] plan that will be submitted to the Department within two years after he leaves State service. Notwithstanding the facts that his name will not appear on the submission and that he will have no contact with the Department, his preparation of the [ ] plans would cause him to "receive compensation for any services rendered in relation to any case, proceeding or application or other matter before such agency." (5)
Finally, the Commission notes that while it has often been requested to provide a "hardship" exemption from the law's post-employment restrictions, it lacks the statutory authority do so in cases such as [the requesting individual's]. As the Commission stated in Advisory Opinion No. 93-8:
We are aware of the impact of this law as it relates to the requesting individual's personal circumstances. However, every person affected by the revolving door limitations may be able to assert similar claims. Without recognition in law to grant waivers, the Commission is constrained from considering such personal justifications. . . .
The Commission concludes that the two year bar would preclude [the requesting individual], within two years of his leaving the Department, from assisting in the preparation of [ ] plans that will be submitted to his former agency.
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.
All concur:Paul Shechtman, Chair
Dated: April 14, 1999
1. Advisory Opinion Nos. 90-3, 96-15.
2. Advisory Opinion No. 91-9.
3. Advisory Opinion Nos. 87-7, 89-9, 94-6.
4. Advisory Opinion Nos. 89-7, 90-7.
5. [The requesting individual] may provide to clients general information on the requirements of the Department, unrelated to a specific case without violating the two year bar. See Advisory Opinion No. 90-4. He may also render services which do not involve specific advice or participation in the preparation of an application to be submitted to his former agency. See Advisory Opinion No. 90-3.