Public Officers Law § 73(8)(a) contains two types of post-employment restrictions: a “two-year bar” and a “lifetime bar.”
The purpose of the post-employment restrictions is to prevent you from using the knowledge, experience, and professional contacts gained throughout your career in State service to benefit either yourself or someone, thereby securing unwarranted privileges, consideration, or action.
The post-employment restrictions may prevent you from accepting a job at a private company that does business with your former agency. For this reason, it is important that you understand the post-employment restrictions prior to leaving State service for retirement or a transition to the private sector.
Who is covered?
A “covered person” includes:
- Statewide elected officials;
- Officers and employees of New York State departments, boards, bureaus, divisions, commissions, councils, or other State agencies (*other than unpaid and per diem officers of those entities); and
- Members, directors, and employees of New York State public authorities and public benefit corporations (*other than unpaid and per diem members and directors of those entities).
¬ Officers of boards, commissions, or councils, who are unpaid or paid on a per diem basis, are excluded from Public Officers Law § 73; however, they are still bound by the conflict of interest rules found in Public Officers Law § 74.
Two-Year Bar: Appear or Practice
The two-year bar applies once you leave State service and prohibits you from:
- appearing or practicing before your former agency, and;
- rendering services for compensation, in relation to any case, proceeding, application, or other matter before your former agency.
What does it mean to appear or practice before your former agency?
The phrase ‘appearing or practicing’ generally reflects efforts to influence a decision by your former agency, or to gain information from your agency that is generally not available to the public.
The appearance/practice prohibition applies whether you are paid or unpaid. Examples of activities that JCOPE has determined violate the appearance/practice clause include, but are not limited to:
- Having your name appear on any document submitted to your former agency (including being copied on any letter or e-mail).
- Negotiating a contract with your former agency.
- Submitting a grant proposal or application to your former agency.
- Representing a client in an audit before your former agency.
- Engaging in settlement discussions with your former agency.
- Calling your former agency for guidance on how it might apply a future regulation or application, where generally your former agency would not provide such information to the public.
- Making a Freedom of Information Law ("FOIL") request on behalf of a client or contacting key personnel to collect data from your former agency is prohibited; however, you may make a FOIL request on your own behalf.
Special Two-year Bar for Executive Chamber employees
A former officer or employee of the Executive Chamber is prohibited from “appearing or practicing” before the Executive Chamber or any State agency for a period of two years. However, former Executive Chamber employees are permitted to perform backroom services for other State agencies during this time period.
Two-year Bar: Backroom Services
The backroom services clause prohibits you from being paid to assist someone behind the scenes with respect to "any case, proceeding, application or other matter" that is before your former agency. This can include developing or helping to develop work product that will be submitted to and reviewed by your former agency, or merely even advising someone on how to handle a "case, proceeding, or application or other matter" that is before your former agency.
Backroom services may be performed free of charge. Therefore, you may, on a voluntary, unpaid basis, assist someone with backroom services on a matter pending before your former agency.
Some examples of prohibited backroom services include, but are not limited to:
- Preparing documents for a person or entity when it is reasonably foreseeable that the documents will be reviewed by your former agency, even if your name does not appear on the documents.
- Assisting another person in the creation or development of an application to be submitted to your former agency.
- Assisting another person in the creation or development of a plan or strategy intended to influence a decision by your former agency.
- Providing guidance to someone who is making a telephone call to your former agency, or advising someone to mention your name during the conversation.
The Lifetime Bar
The lifetime bar will prohibit you from ever working on a matter that was handled by top level agency staff.
How is “Directly Concerned/Personally Participated/Active Consideration” measured?
- Personal participation and direct concern in a specific case requires more than an awareness of or informal conversation concerning the circumstances.
- Mere acquaintance with or knowledge of a fact or circumstance is insufficient to trigger the lifetime bar. For example, your presence at a meeting where an issue is discussed and you did not vote on the issue, although other colleagues did, generally does not rise to the level of personal participation.
- When determining how the lifetime bar applies to you, JCOPE will consider whether you had a role in affecting the outcome of the transaction as an “active participant or decision maker.”
- The level of responsibility you had while in State service is suggestive of your active involvement.
- Significant transactions handled by senior staff are imputed to the head of an agency. A former agency head cannot work on the same transaction handled by top level staff.
Exceptions to the post-employment restrictions
If you leave State service and accept a position as an employee of a federal, State, or local government entity, the post-employment restrictions do not apply. This exception also applies to employment with specific private sector entities that are closely affiliated with certain State agencies. The government-to-government exception applies only if you are an employee of the government entity. Being hired as an independent contractor for a government entity does not exempt you from the post-employment restrictions.
Continuity of Care for Health Care Professionals
Former State-employed health care professionals may treat former patients and clients at the State facility which formerly employed the health care professional.
Public Officers Law § 73(8-b) Certificate of Exemption
Generally, JCOPE cannot waive the post-employment restrictions. JCOPE is only authorized to grant exemptions to the two-year bar and/or lifetime bar to permit an agency to contract with a former employee, who is otherwise barred, to work on a specific project for a limited period of time.
The head of an agency must certify in writing that the former employee has specific knowledge, expertise, or experience on a particular project, and the agency has been unable to identify an alternate candidate at a comparable cost.
If granted, the Certificate of Exemption allows former State employees to work for their former agency for a defined period of time to complete a project.
The Joint Commission on Public Ethics periodically releases Ethics Reminders. Each reminder is a brief and easy to understand synopsis of the laws and rules under the Commission’s jurisdiction. Ethics Reminders are issued to assist those subject to the Commission’s jurisdiction in understanding and complying with their obligations under the law.
Contact The JCOPE Attorney of the Day
The Commission administers an "Attorney of the Day" program to help provide State officials and employees, lobbyists, and clients of lobbyists with free, confidential advice, both formal and informal, on navigating the State's ethics and lobbying laws.