New York State
Ethics Commission


Advisory Opinion No. 99-13: Application of Public Officers Law 73(8)(a)(i) to [an individual] employed by the New York State Department of Correctional Services ("DOCS") who asks whether he may leave State service and work for a private company [ ] overseeing the company's contract with DOCS.

INTRODUCTION

The following advisory opinion is requested by [a State employee who] is employed by the New York State Department of Correctional Services ("DOCS") as a [title]. He asks whether he may accept the position of [ ] with [a private company] which has a contract with DOCS to provide [certain services]. As [title], he would be responsible for overseeing the contract with DOCS.

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 post-employment restrictions of Public Officers Law 73(8)(a)(i) prohibit [the requesting individual] from accepting the position of [ ] with [the private company] overseeing the contract with DOCS, as this position would cause him to make prohibited appearances before DOCS within two years of his leaving State service.

BACKGROUND

[The requesting individual] has been employed by DOCS since [date] as a [title]. His responsibilities include [ ].

DOCS has a contract with [the private company] to provide [certain services]. The [services are], in turn, provided by contracts with [ ] other vendors [ ].

[The private company] is recruiting for [an employee] to oversee its contract with DOCS. [The requesting individual] states that [the private company's employee] would be responsible to DOCS for ensuring that quality [services are] provided in accordance with its contract. This would include reviewing [ ] all requests [ ] made by staff at the DOCS facilities. The [private company's employee] would also need to meet with DOCS [employees] regarding [certain matters].

APPLICABLE STATUTE

The post-employment restrictions applicable to former state officers and employees set 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.

The two year post-employment restrictions are found in Public Officers Law 73(8)(a)(i), which provides as follows:

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.

The two year bar statute contains two clauses which prohibit former State officers and employees, for a period of two years after they leave State service, from: (a) appearing before their former agency (whether appearing in person, by phone or written communication), and (b) rendering services for compensation in relation to any matter before their former agency (the so-called "back room services" clause).

The lifetime post-employment restrictions are found in Public Officers Law 73(8)(a)(ii), which provides as follows:

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 lifetime bar prohibits State employees from rendering services for compensation in relation to any case, proceeding, application or transaction with respect to which they were directly concerned and in which they personally participated during the period of their State service, or which was under their active consideration during that period.

DISCUSSION

The post-employment restrictions were part of the 1987 Ethics in Government Act, which has been described as a "sweeping reform measure designed to 'enhance public trust and confidence in our governmental institutions' (Forti v New York State Ethics Commission, 75 NY2d 596, 603, quoting Governor's Program Bill Mem., Bill Jacket, L.1987, ch.813). In general, the purpose of revolving door restrictions is to prevent former government employees from unfairly profiting from or otherwise trading upon the contacts, associations and special knowledge they acquired during their tenure as public servants (id., at 605).

For two years following his or her separation from State service, a former employee may not appear, practice or render services in relation to any matter that is before his or her former agency. The Commission has broadly interpreted the term "appearance". For example, a prohibited appearance includes: communicating on behalf of a client concerning generic matters with the former agency's staff (Advisory Opinion No. 89-7); writing, preparing or submitting a grant proposal or application to the agency (Advisory Opinion Nos. 90-21, 97-15); negotiating contracts with the former agency (Advisory Opinion No. 90-4); participating in field audits or representing a client in reviews by the former agency (Advisory Opinion No. 90-4); submitting periodic status reports, final report of findings and billing invoices to the former agency (Advisory Opinion No. 91-9); and reviewing case files at the former agency or calling the former agency to ask questions about such files (Advisory Opinion No. 94-5).

Applying Commission precedent to the facts in the instant opinion request, it is clear that [the requesting individual] could not perform the duties of the [the private company's employee] which require meeting with DOCS [employees] regarding [ ] matters and meeting with the DOCS Associate Commissioner regarding policy and contractual matters, as these duties would cause him to appear before his former agency in violation of the two year bar. The prohibition against meeting with former agency employees to discuss matters regarding an ongoing contract goes to the very heart of the two year bar post-employment restriction.

Furthermore, even after the expiration of the two year bar, [the requesting individual] will remain subject to the lifetime bar, which prohibits him from rendering compensated services on any case, proceeding, application or transaction with respect to which he was directly concerned and in which he personally participated or which he actively considered while in State service. As determinations relative to the lifetime bar are always made on a case-by-case basis (see, Advisory Opinion No. 90-22), [the requesting individual] is encouraged to contact the Commission should a lifetime bar issue present itself.

CONCLUSION

The Commission concludes that the two year bar post-employment restrictions of Public Officers Law 73(8)(a)(i) prohibit [the requesting individual] from accepting the position of [ ] with [the private company] overseeing their contract with DOCS, as this position would cause him to make prohibited appearances before DOCS within two years of his leaving State service.

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
Robert J. Giuffra, Jr.
Henry G. Gossel
Lynn Millane
O. Peter Sherwood, Members

Dated: September 15, 1999


Go to Directory of NYS Ethics Commission documents

URL: http://www.nysl.nysed.gov/edocs/ethics/99-13.htm