New York State Ethics Commission
Alfred E. Smith State Office Bldg.
80 South Swan Street, 11th Floor, Suite 1147
Albany, NY 12210
|Advisory Opinion No. 03-7
Application of Public Officers Law §73(8) to an employee of the New
York State Office of Temporary Disability Assistance who wishes to
provide contractual services to a public benefit corporation that is
staffed by his former agency upon his retirement.
The following advisory opinion is issued in response to [ ], an
employee with the New York State Office of Temporary and Disability
Assistance (“OTDA”), who is contemplating retirement and wishes to
provide part-time contractual services to a public benefit corporation
that is staffed by OTDA.
Pursuant to the authority vested in the State Ethics Commission
(“Commission”) by Executive Law §94(15), the Commission renders its
opinion that for purposes of the revolving door restrictions, the
Homeless Housing Assistance Corporation (“HHAC”) is considered [the
requesting individual’s] “former agency,” in addition to OTDA, and,
therefore, he may not provide technical services to HHAC as an
independent contractor until his two-year bar expires.
[The requesting individual] is currently employed by OTDA as a [job
title], and is considering retirement. His State job duties for
OTDA require him to evaluate and make funding recommendations for the
Homeless Housing and Assistance Program (“HHAP”) and other
programs. HHAP was enacted by Chapter 61 of the Laws of 1983 and
provides capital grants and loans to not-for-profit, charitable and
religious organizations to acquire, construct or rehabilitate housing for
persons who are homeless and are unable to secure adequate housing
without special assistance. Program funds are awarded through an
annual competitive request for proposals process.
In 1990, the Legislature established HHAC as a public benefit
corporation to issue the necessary bonds to finance the costs of
developing projects under HHAP (see, Private Housing Finance
§45-c). As a public benefit corporation, HHAC falls within the
definition of a “State agency” for purposes of Public Officers Law §§73,
73-a and 74. HHAC is a subsidiary of the New York State
Housing Finance Agency (“HFA”). HHAC has no employees of its own
and is staffed by OTDA: the Commissioner of OTDA serves ex
officio as its chairperson and the President of HFA and the
Commissioner of the Division of Housing and Community Renewal (DHCR) also
serve ex officio as members of the HHAC Board of Directors.1 OTDA also submits an annual report to the Governor and the
Legislature concerning the projects under HHAP.
Each year, HHAC selects categories of projects as priorities for funding
to assist specific homeless populations based upon a determination of
need. The success of the program depends upon access to social and
related services, including job training and placement, mental health
services, and childcare.
[The requesting individual] is contemplating retirement and is
interested in providing certain part-time technical services under
contract to HHAC. On [date], [the requesting individual] requested
an informal opinion to determine the application of the post-employment
restrictions involving this employment opportunity. On [date], the
Commission responded that, given the relationship between HHAC and OTDA,
it would be difficult, if not impossible, for him to provide services to
HHAC as an independent contractor. [The requesting individual] asks the
Commission to issue a formal opinion reconsidering its prior informal
opinion and has supplied additional facts as to his proposed activities
on behalf of HHAC.
The technical services [the requesting individual] would like to perform
are as follows:
(1) [The requesting individual] proposes to act as a liaison
between HHAC and HFA relating to tracking expenditures and reimbursement,
which requires specific knowledge of the bond financing that funds
HHAP. In this capacity, [the requesting individual] states that he
would collect data from OTDA, analyze it, and report his findings to HFA.
(2) As the only certified appraiser currently on staff with OTDA, [the
requesting individual] would like to continue to review appraisals for
the acquisition of real property from the sponsors for the capital
development program. He would prepare a memorandum with a
recommendation as to the acceptability of the appraisal and submit it to
the HHAC Board for its review and approval; and
(3) [The requesting individual] would coordinate the State Environmental
Quality Review Act (“SEQRA”) and the State Historic Preservation (“SHP”)
processes for HHAP, which would require him to analyze materials relating
to environmental, historic and local planning concerns. He would submit
his evaluation to the HHAC Board.
[The requesting individual] argues that he would like to perform these
duties exclusively for HHAC as a contract employee, and that in today’s
State budget environment, this should be viewed as a cost effective
approach to providing necessary State services.
Public Officers Law §73(8)(a)(i) states:
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 “revolving door” provisions of Public Officers Law §73(8)(a) 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. The two-year bar prohibits a former
State employee from appearing, practicing or rendering services for
compensation in relation to any case, proceeding, application or other
matter before his or her former agency for two years following separation
from State service.
1. Whether HHAC is [the requesting individual’s] former State
agency for revolving door purposes.
As an initial matter, the Commission must decide whether HHAC should be
considered [the requesting individual’s] “former agency” for purposes of
applying the two-year bar. The Commission has previously considered
the issue of whether a former State employee could have multiple former
In Advisory Opinion 95-19, the Commission noted that the
revolving door restrictions apply when it can be shown that there is a
“continuing service” to a State agency, even where the employee is not
compensated by the agency.
More recently, in Advisory Opinion 02-02, the Commission was asked to
consider the “former agency” for employees of the Department of Economic
Development (“DED”) and the Urban Development Corporation (“UDC”) d/b/a/
Empire State Development Corporation (“ESDC”). UDC, a public
benefit corporation, was authorized to organize subsidiary corporations
established to manage specific projects or economic development
activities in the State. ESDC was then established to streamline
the functions of UDC and its subsidiaries. Given the unique
structure, interaction and jurisdiction of DED and UDC and its
subsidiaries which were created under the statutory jurisdiction of UDC
and, together, operated under an umbrella corporation (i.e., ESDC) the
designation of “multiple” former agencies was particularly complex.
In rendering its determination, the Commission considered both the
specific duties and responsibilities of the individuals, along with the
functions of certain programs and operations of the entities
involved. For the requesting individuals, their “former agency” was
both DED and UDC d/b/a ESDC, but not the subsidiaries of UDC as their
duties and the functions of their respective offices did not extend to
In the instant matter, HHAC was created to issue bonds for HHAP, and is
staffed by OTDA.3 Another factor to be considered is that the
Commissioner of OTDA serves ex officio as the chairperson of the
HHAC Board. In Advisory Opinion 89-3, the Commission held that mere
presence of one Executive Department officer on a Sitting Board
established by statute does not make the Sitting Board a part of the
Executive Department for purposes of applying the two-year bar.
Critical to that opinion, however, was the Board’s independent status as
a State agency created by statute with a statutory mission separate from
the agencies which comprised it. That is not the case here because
OTDA and HHAC share the same mission – that is, to provide housing for
the homeless, and their work is totally intertwined.
Moreover, [the requesting individual] currently has job responsibilities
relating to HHAC which mirror what he proposes to do for HHAC upon
retirement. He not only evaluates and makes funding evaluations for
specific housing projects, but he is also responsible for reviewing the
appraisals in the capital development program and assisting in the SEQRA
and SHP process. Thus, he has regular and continuing
responsibilities to HHAC. Given [the requesting individual’s] job
duties and the role OTDA plays in staffing HHAC, the Commission concludes
that both HHAC and OTDA would be considered [the requesting individual’s]
“former agency” for two-year bar purposes.
2. Whether [the requesting individual] can contract back
with HHAC during the proscribed two-year period.
The Commission has held that a former employee may not contract with his
former State agency within two years of leaving State service
(see, Advisory Opinion No. 94-21). As the Commission finds
that HHAC, in addition to OTDA, is [the requesting individual’s] former
agency, his proposal to contract with HHAC would be a violation of the
two-year bar under Commission precedent.
The Commission notes that [the requesting individual] would like to
perform these services as an independent contractor to HHAC, not as an
employee.4 [The requesting individual] may wish to explore the
possibility of entering into an arrangement whereby he would be employed
by the HHAC or some other governmental entity, thus falling within the
exception of §73(8)(e), and avoiding a violation of the two-year bar.5
The Commission concludes that HHAC and OTDA are [the requesting
individual’s] former agency for purposes of the two-year bar under Public
Officers Law §73(8)(a)(i) and that [the requesting individual] may not
provide technical services as an independent contractor without
appearing, practicing or rendering services for compensation in a matter
before OTDA and HHAC within the proscribed period.
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
Robert J. Giuffra, Jr.
Carl H. Loewenson, Jr.
Dated: July 29, 2003
HHAC’s contracts are subject to the provisions of the Social Services Law
and not the provisions of the Public Authorities Law.
See, Advisory Opinion Nos. 90-22,
While HHAC is a subsidiary of HFA, that arrangement permits HFA’s
issuance of bonds to finance HHAP’s projects.
The Commission has in the past initiated a legislative proposal which
would create an exception to the post-employment restriction under
certain proscribed circumstances similar to those contemplated here (2003
legislative session - bill number S.5148). However, the proposal
did not become law.
[The requesting individual] is also reminded of the provisions contained
in the lifetime bar, which prohibits him from working on any case,
proceeding, application or transaction in which he was directly
concerned, personally participated or which was under his active
consideration while in State service. Thus, for example, the
lifetime bar would preclude him from working on a project to which he had
evaluated or made a funding recommendation. Determinations regarding the
lifetime bar are always made on a case-by-case basis. (See,
Advisory Opinion No. 90-22.)