|Advisory Opinion No. 01-6:||The lifetime bar of Public Officers Law §73(8)(a)(ii) does not preclude a retired ORPS employee from developing and teaching a course utilizing expertise gained in State service.|
The following advisory opinion is issued in response to a request from [ ] a former employee with the Office of Real Property Services ("ORPS"), concerning whether the lifetime bar restrictions of Public Officers Law §73(8)(a)(ii) would preclude him from developing and teaching a course on the valuation of utility mass property, utilizing expertise gained in State service.
Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") affirms the Executive Director's informal opinion that the lifetime bar does not prohibit [the former State employee] from developing and teaching such a course.
ORPS has been asked by members of the assessment community to develop a course of training concerning the valuation of utility mass property. Mass property consists of the poles, wire cable, mains and similar items owned by utility companies and placed in both the public and private right-of-way. Due to lack of staff availability and the high level of knowledge necessary to present this material, there are very few ORPS employees who could develop and teach this course.
Based upon [the former State employee's] extensive experience in this area, ORPS and members of the assessment community sought to have him develop and teach this course. Prior to his retirement from ORPS in [date], [the former State employee] was employed in the State Assessment Services division of ORPS as a [job title]. ORPS seeks to contract with [the former State employee] directly for short-term services, and all materials will become the property of the State upon completion of the project. [The former State employee] will not be representing a private client before ORPS, nor will he be training ORPS employees. He will be working with employees of various local governments.
In February 2001, [the former State employee] sought an exemption from the revolving door provisions of the Public Officers Law to allow him to contract with ORPS to teach such a course. By informal opinion dated April 13, 2001, the Commission's Executive Director indicated that the two year bar would preclude such service prior to August 2001, but that after that date, teaching such a course would not violate the lifetime bar of Public Officers Law §73(8)(a)(ii). [The former State employee] has requested a formal opinion of the Commission confirming this determination.
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 Commission must determine whether [the former State employee], in developing and teaching a course concerning the valuation of utility mass property, would be rendering services in relation to a case, application, proceeding or transaction with respect to which he personally participated or actively considered while in State service. [The former State employee] did not perform such training while at ORPS.
Although [the former State employee's] previous experience and position with ORPS has given him the knowledge to be able to develop and teach this course, apparently, he had not developed a course on this topic while in State service. As such, it clearly is not a transaction on which he worked while employed at ORPS. The Commission has concluded that, once the two year bar has expired, the lifetime bar does not prohibit a former employee from contracting with his former agency, so long as the services do not relate to a case, proceeding, application or transaction on which he was directly concerned and in which he personally participated while in State service (see, Advisory Opinion No. 97-2). Furthermore, in Advisory Opinion No. 01-3, the Commission determined that the lifetime bar did not preclude a former employee from providing training he developed while in State service for the same types of organizations, as long as it did not involve confidential or proprietary information, stating that "developing and conducting training is similar to the development and use of a methodology, and neither is covered by the lifetime bar." There is nothing contained in the materials [the former State employee] would be developing which would be considered confidential or proprietary information of ORPS.
The lifetime bar of Public Officers Law §73(8)(a)(ii) does not prohibit [the former State employee] from developing and teaching a course based upon his prior State experience utilizing expertise gained in 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.
Paul Shechtman, Chair
Robert J. Giuffra, Jr.
Henry G. Gossel
O. Peter Sherwood, Members
Dated: October 18, 2001