|Advisory Opinion No. 98-21:||Determination, for purposes of Public Officers Law §73(8)(a)(i), the two year bar, of the former agency of a former employee of the Central Administration Office of the State University of New York.|
The following advisory opinion is issued in response to a request from [ ], former [job title] at the Central Administrative Office of the State University of New York ("SUNY Central"), who asked how the post-employment restrictions of Public Officers Law §73(8)(a) apply to his work as a software consultant. Most of the questions he asked were answered in an informal opinion, dated November 2, 1998. Left for this opinion were questions concerning his ability to engage in certain work relating to a computer software contract between his current employer and the SUNY campus at Binghamton ("SUNY - Binghamton").
Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") renders its opinion that [the requesting individual] may work on the contract because his former agency, for purposes of the two year bar, is SUNY Central only, and the software systems on which [the requesting individual] would work at SUNY - Binghamton will be unrelated to the systems on which he worked as a State employee.
[The requesting individual] served as [job title] in the Office of Systems Administration at SUNY Central until he resigned on [date]. In that position, he was responsible for [ ]. This included [ ], and coordinating [certain activities] between SUNY and other State agencies.(1) Specifically, [the requesting individual] had supervisory responsibility for coordinating the accounting activities of the automated on-line [System A] and supervising the maintenance of the automated on-line [System B], including the expansion and improvement of the file processing and reporting capabilities of the latter. Both systems operated from a SUNY Central mainframe computer.
[The requesting individual] also supervised and coordinated an inter-office team of employees responsible for transferring both [System A] and [System B] to a single software system developed by [a private company]. The team was involved in transferring and reconciling several years of historical [ ] data from the two existing systems to [the private company's] system.
[The requesting individual] indicated in a telephone conversation with Commission staff that most SUNY campuses maintain a local computer operation which processes campus administrative and student information. Each local campus also collects financial information. While he worked at SUNY Central this financial information was transmitted to the SUNY Central mainframe system, one of those under [the requesting individual's] supervision. The SUNY Central mainframe system, upon receiving financial information from each campus, processed and transmitted this information to the accounting system of the Office of the State Comptroller ("OSC").
In addition to these responsibilities, [the requesting individual], along with his staff, was responsible for developing and coordinating user assistance, training manuals and training programs for [ ] system users. The unit served as a liaison with various campuses [ ]. These activities required [the requesting individual] and his staff to deal with the personnel of the business offices of the colleges and universities within the SUNY system, answering a variety of ad hoc questions concerning [ ] matters. [The requesting individual] described this activity as a type of "help desk" for campus business offices.
[The requesting individual] is currently employed by [the private company] as a [ ] Consultant. His primary responsibility is to tailor the application and implementation of [the private company] software to meet the needs of specific clients.
In his request for an opinion, [the requesting individual] asked whether, as an employee of [the private company], he could, without violating the post-employment restrictions of Public Officers Law §73(8)(a), render services pursuant to contracts with OSC, the State Education Department and SUNY - Binghamton. In an informal opinion, the Commission determined that neither the two year bar nor the lifetime bar prohibited [the requesting individual] from working on [the private company's] contracts with OSC and the Education Department. However, since the question of whether [the requesting individual] could work on the SUNY - Binghamton contract was more complex, the Commission left it for this formal opinion. This contract involves replacing the software system that maintains the student and administrative database at the campus with new [the private company's] software.
In order to address this question, a knowledge of SUNY is required. The University was described in Advisory Opinion No 95-42. That description is set forth in full.
The SUNY system is governed by a 16-member Board of Trustees ("Board"), 15 of whom are appointed by the Governor with the advice and consent of the Senate. The Board sets policy and appoints the University Chancellor, who serves as SUNY's chief executive officer. Among its duties, the Board formulates long-range plans for the SUNY system, encompassing the areas of new curricula and facilities as well as policy changes with respect to student enrollment. In addition, the Board is responsible for the "overall central administration, supervision and coordination of state-operated institutions . . . ." Among the powers and duties of the Board are the following:
Within the parameters and guidelines set by the Board of Trustees and the Chancellor, each college campus within the SUNY system maintains a great deal of independence and flexibility in administering its operations. For example, each college has its own president and administration, which operates the campus on a day to day basis. Once the SUNY system budget has been allocated, the administration at each campus is responsible for administering its own annual operating budget. In addition, each campus may, with certain exceptions, enter into contracts for goods and services costing up to $50,000 and establish fees, charges and deposits for a variety of campus services and activities. While the college president is appointed by the Board of Trustees, the individual colleges are authorized to conduct other personnel transactions. Each campus is a separate payroll entity, and faculty and staff earn tenure in employment only at the campus at which they are employed.
Public Officers Law §73(8)(a)(i) provides in relevant part:
(i) 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.
Public Officers Law §73(8)(a)(ii) provides in relevant part:
(ii) 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 personally participated during the period of his service or employment, or which was under his or her active consideration.
These provisions are what are generally referred to as the "revolving door" provisions. They 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 (subparagraph [i]) prohibits former State officers and employees from appearing, practicing or rendering services for compensation in relation to any case, proceeding, application or other matter before their former agency for two years following their separation from State service. The lifetime bar (subparagraph [ii]) precludes a former employee from rendering services for compensation 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 State service or which was under his or her active consideration during that period.
The Commission begins by examining the two year bar. Since a former State employee cannot appear, practice or render compensated services in relation to a matter before his or her former agency, the designation of a former employee's "former agency" is critical to determining the extent of the bar. For most employees, this is a simple matter. However, in certain instances, it can be complex. SUNY, because of its structure, falls within the latter category.
The Commission has examined the two year bar in the context of SUNY on one previous occasion. In Advisory Opinion No. 95-42, the Commission held that a former employee of the SUNY at Albany campus was barred only from that campus. She was permitted to appear, practice or render services in matters before the other colleges within the SUNY system. The Commission based its determination on the structure and operation of the system. It described the individual campuses as follows:
Each has its own president and administration, administers its own budget, can enter into certain contracts for goods and services, charge fees and conduct personnel transactions, all without central administration approval. Thus, in general, the governing powers of SUNY and its constituent colleges are divided. This means that an individual having a matter before one of SUNY's colleges may have to deal with the individual college or SUNY's central administration or both, depending upon the nature of the particular matter. This is critical to the analysis of the two year bar.
Given the independent nature of each of SUNY's colleges, the Commission believes that there is no reason to bar a former employee who served at one college from appearing before or rendering services in connection with a matter before another within two years of having left State service. Because of each college's independence, employees do not customarily move between them, and, thus, do not ordinarily become acquainted with employees at other colleges. In addition, the job functions of most employees do not require them to deal with individuals at any college other than the one at which they work. As noted above, each college generally functions on its own, subject to the guidance and oversight of the central administration.
The Commission was not asked when that opinion was requested whether the former SUNY - Albany employee could appear before SUNY Central. It said that since the question need not be decided, it would leave it for the future. Here, [the requesting individual's] request presents the reverse question -- can an employee of SUNY Central appear or render services in relation to a matter before one of the colleges?
This question presents issues not considered in Advisory Opinion No. 95-42. Because of SUNY Central's role, the relationship between its employees and the individual campuses is different from the relationship between the employees of an individual campus and the other SUNY campuses. Generally, SUNY Central employees have far more contact with the various campuses than do campus employees with other campuses. Such interaction is necessitated by the functions of SUNY Central. For example, it reviews and coordinates the budget requests of all of the colleges and combines them into one University program budget that is submitted to the Governor and the Legislature (Education Law §353[a]). It also reviews and approves certain contracts for goods and services above certain monetary limits (Education Law §355[a]; SUNY Procedures for Processing Proposed Contracts and Contract Amendments Item No. 310 - VIII).
Because of these functions, some SUNY Central employees have regular and ongoing relationships with the campuses. However, not every SUNY Central employee has such contact with the 69 college and university centers. The Commission's view is that the duties and responsibilities of each employee within SUNY Central should be examined to determine the breadth of the two year bar. Because of the variety of their functions, one standard cannot apply to all.
This individualized approach is necessitated by the unusual structure of the SUNY system, with its centralized administrative office and independent constituent colleges. One entity similar, though far from identical, is the Metropolitan Transportation Authority ("MTA") system, where the MTA serves as a central transportation planning agency for many operational affiliates and subsidiaries that act independently of each other. Thus, a previous opinion regarding the MTA is relevant. That opinion explained how the former agency of former employees of the MTA is to be determined.
In Advisory Opinion No. 95-33, the Commission, for purposes of defining their former agency after they leave State service, concluded that the chair and vice chair of the board and the executive director of the MTA, by virtue of their statutory designations, were to be considered officials not only of the MTA, but also of all of the MTA's affiliates and subsidiaries. The heads of MTA's 11 departments and their immediate subordinates whose responsibilities included actively and routinely managing significant projects or matters involving one or more MTA affiliates or subsidiaries may have been considered to be employees of the MTA and the other MTA entity with which they are concerned, to be determined on a case-by-case basis. For all other staff, they are employees only of the MTA or the affiliate or subsidiary where they work.
By referring to this opinion, the Commission does not intend to adopt it to serve as precedent in all circumstances involving SUNY Central employees. The MTA and SUNY are not identical, and considerations may be different in specific cases. However, the two entities are close enough in structure so that Advisory Opinion No. 95-33 can serve as a useful guide when the issue of the two year bar arises with respect to a SUNY Central employee or a former SUNY Central employee.
Looking at [the requesting individual], he served as [job title] in the Office of Systems Administration at SUNY Central. This position has not been designated by SUNY as policymaking. In this position, [the requesting individual] supervised the [ ] staff, directed the [ ] systems for SUNY Central and the campuses, and was responsible for maintaining several on-line mainframe computer systems. He and his staff also operated what was described as a help desk service for the business staff of the SUNY campuses, answering questions on an as-needed basis.
It appears that [the requesting individual's] responsibilities required him to have some contact with the SUNY campuses. However, this contact appears to have been sporadic and ad hoc. Clearly, the focus of [the requesting individual's] attention was the [ ] systems at SUNY Central. In these circumstances, the Commission finds that [the requesting individual's] regular duties as [job title] at SUNY Central did not cause him to be significantly involved with SUNY's campuses, and his "former agency" for purposes of Public Officers Law §73(8)(a)(i) is SUNY Central only. Thus, he is not precluded by the two year bar from working on a contract with SUNY - Binghamton.
This leaves the lifetime bar to be considered. It must be determined whether the [the private company] contract to perform services at SUNY - Binghamton, on which [the requesting individual] wishes to work, is part of any transaction in which he personally participated while employed at SUNY Central.
At first glance, it might appear that [the requesting individual's] proposed work is directly related to work he performed for SUNY. While serving at SUNY, he was involved in replacing two mainframe systems to [the private company] system, and he wishes to replace an existing system at SUNY - Binghamton with new [the private company] software. [The requesting individual] has advised the Commission that he transferred and reconciled historical [ ] system information while employed by SUNY to [the private company] software system. At SUNY - Binghamton, [the requesting individual] would customize [the private company] software for use with administrative and student information databases. These are two distinctly different databases and software applications. In fact, the system that is the subject of the contract is for a database that will contain information for campus use only. It will not be tied into any SUNY Central database. Accordingly, there is no need to consider whether [the requesting individual] would be prohibited from engaging in the SUNY - Binghamton project because it is not the same transaction. He would be permitted to apply the general knowledge and expertise he acquired at SUNY in the context of the new transaction (Advisory Opinion No. 94-18).
The Commission concludes that the two year bar does not preclude [the requesting individual] from working on [the private company's] contract with SUNY - Binghamton, as his former agency, from which he is barred, is SUNY Central only. Furthermore, the lifetime bar does not preclude him from replacing the software systems at SUNY - Binghamton since such systems are distinct from any systems on which he would work as a State employee.
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 L. Shechtman, Chair
Robert J. Giuffra, Jr.
Henry G. Gossel
O. Peter Sherwood, Members
Dated: November 23, 1998
1. Job description: [ ] provided by SUNY General Counsel's Office.