The following advisory opinion is issued in response to a request submitted
by [ ]1, a former employee of the New York State
Department of Health (“DOH”), concerning application of the post-employment
restrictions contained in Public Officers Law §73(8)(a)(i) to an employee
during the time in which he is suspended, without pay, from his State position.
In [date], an investigation concerning [the requesting individual] was referred
to the Commission by the Office of the Inspector General. The Commission commenced
its own investigation and a 15 day letter was issued on [date], setting forth
alleged violations by [the requesting individual] of Public Officers Law §74(2)
and (3). Upon completion of a lengthy investigation and report, a Notice of
Reasonable Cause (“NORC”) was issued by the Commission on [date],
finding reasonable cause to believe that [the requesting individual] had violated
Public Officers Law §74(2) and the standards of §74(3)(d), (f) and
(h) on four separate occasions when he solicited a job for his wife with [a
firm doing business with his agency]; when he failed to fully disclose the nature
of his wife’s work to DOH while they were attempting to set up a recusal
policy for [the requesting individual]; when he worked on matters in which his
wife was directly involved at [the firm]; and when he gave the impression that
[the firm] could unduly enjoy his favor in responding to requests from a principal
of that firm concerning a matter pending before DOH on which his wife was working.
In Advisory Opinion No. 95-15, the Commission examined the application of Public
Officers Law §§ 73 and 74 to an employee on a leave of absence, and
opined that a State employee on leave without pay is still in State service,
and remains in State service, for purposes of Public Officers Law §73 “until
he or she either terminates employment with the State or is terminated from
such employment by appropriate State action.” The Commission reasoned
that, in accord with Civil Service Law §52, the post-employment provisions
of §73 would not apply until such leave period is terminated, but, that
until such time, all other provisions of §73, as well as the provisions
of §74, would apply. This position was reaffirmed by the Commission upon
reconsideration in Advisory Opinion No. 95-37.
Although [the requesting individual] argues that his circumstances are distinct because his suspension was involuntary, he subsequently received all his back pay and benefits through the date of his retirement, [ ] -- the date [the requesting individual] voluntarily chose to end his State service. Prior to this date, although on suspension, [the requesting individual] was entitled to, and in fact received, all the benefits incident to State employment, including arbitration of his suspension. Had he not chosen to retire, [the requesting individual] would have been entitled to the benefit of returning to his position with HFMG, and would still be on the State payroll. Along with the benefits of State employment also run concurrent obligations, including those imposed by the Public Officers Law. In short, the appropriate measure from which to run the two-year bar is [ ], the date [the requesting individual] terminated his State service.
[The requesting individual] also argues that HFMG is a separate State agency and that, for purposes of the two-year bar, he would be barred from appearing only before HFMG, and not DOH. [The requesting individual] submits a copy of the DOH organizational chart in support of his argument.
Rather than support his argument, however, the chart demonstrates that HFMG
is, as described by DOH, an organizational unit within the Department. HFMG
serves under the Commissioner of Health, and has no separate agency code designation.
There is nothing to indicate HFMG management makes separate employee hiring
and firing determinations. To the contrary, [the requesting individual] transferred
to HFMG directly from his other position with DOH. HFMG’s offices are
located in the Corning Tower, in Albany, New York along with a number of other
DOH offices, including its central office. Unlike Advisory Opinion No. 95-1,
in which the Commission determined that the Liquidation Bureau (“Bureau”)
of the Insurance Department (“Department”) was a sufficiently separate
entity from the Department to justify treating it as a separate agency for revolving
door purposes, the facts do not demonstrate, and [the requesting individual]
has not shown, any reason to treat HFMG as anything different than what it is
- one of many organizational units within DOH.2
CONCLUSIONThe Commission hereby renders its opinion that the two year post-employment restrictions of Public Officers Law §73(8)(a)(i) do not commence until an employee officially leaves State service. Additionally, employees of the Health Facilities Management Group at DOH, are considered DOH employees for purposes of the revolving door provisions of Public Officers Law §73(8)(a)(i).
This opinion, unless and until 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.
Dated: February 6, 2003
1 The original request for an opinion of the Commission was submitted by [the requesting indivdual]. That request has subsequently been supplemented by [the requesting individual's] attorney, [ ], who has requested a formal opinion from the Commission.
2 In Advisory Opinion 95-1, the
Bureau is described as an independent entity, maintaining separate offices,
having the power of appointment and removal of its employees, and a separate
funding source from the Department.