|Advisory Opinion No. 99-09:||Application of Public Officers Law §73(8)(a) to a former employee of the New York State Department of Transportation appearing before a Metropolitan Planning Organization.|
The following advisory opinion is issued in response to a request from [ ], a former employee of the New York State Department of Transportation ("DOT"), who asks whether the post-employment restrictions of Public Officers Law §73(8)(a) prohibit him from appearing before Metropolitan Planning Organizations ("MPO") located in the State.
Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") renders its opinion that the two year bar of Public Officers Law §73(8)(a)(i) does not prohibit [the requesting individual] from appearing, practicing or rendering services for compensation before the MPOs, with the exception of the New York Metropolitan Transportation Council, the MPO that covers the New York City metropolitan area, for reasons discussed below.
[The requesting individual] retired from DOT on [ ] from the position of [ ]. He was responsible for DOT activities in that area which includes [ ] Counties. He is now employed by a consulting engineering firm and would like to write to various MPOs to request copies of their approved Transportation Improvement Programs ("TIP").
Federal statute requires that MPOs be designated to develop transportation plans and programs for urbanized areas of the State. (See 23 U.S.C.A. §134.) MPOs serve as the conduit for a State to receive federal highway and mass transportation funds. One MPO is designated for each urbanized area with a population of more than 50,000, either by agreement between the Governor and units of local government that comprise 75 percent of the affected population or in accordance with procedures established by applicable State or local law. The federal statute provides that the board of each MPO shall consist of local elected officials, officials of public agencies that operate transportation systems in the area, and appropriate State officials. In New York State, the Commissioner of DOT is an ex officio member of each of the twelve MPOs.
While federal statute provides for their existence, it does not detail how the MPOs are to be created or organized. That determination is left with the individual States. In New York, the MPOs exist by virtue of memoranda of understanding between DOT and the MPOs.
Transportation Law §15-a, enacted in 1975, recognized MPOs as the "organization designated as such by the governor for the purpose of complying with federal statutes".
Transportation Law §15-a did not provide the statutory authority for the creation of MPOs, but recognized their existence as continuing. The section further provides that the responsibilities of an MPO shall include the development of long-range regional transportation plans for submission to the Commissioner of DOT, who considers them for inclusion in the statewide transportation master plan; the development and suggestion to the Commissioner of periodic amendments to the master plan; consultation and cooperation with local officials and representatives of carriers and transportation facilities and systems within their urbanized area; and examination of the structure and cost of transit operations.
DOT had entered into memoranda of understanding with the different municipalities and local transportation authorities that comprise the organization of the individual MPOs, which outlines their responsibilities consistent with those contained in Transportation Law §15-a.
As the MPOs have no legal status of their own, a local government entity that is a member of the MPO must serve as what DOT refers to as the "host" agency for administrative purposes. The "host" can be a municipality, county or public transportation authority. Employees needed by the MPO are put on the host's payroll and the host provides office space and supplies. The federal Department of Transportation provides DOT with funds to administer the MPO program statewide, and DOT allocates the money to particular MPOs. Each "host" agency enters into a contract with DOT whereby the host remains accountable to DOT for the funds provided. Such agreements are subject to the approval of the State Comptroller.
The New York Metropolitan Transportation Council ("NYMTC") is organized and administered differently from the eleven other MPOs located in the State. It is composed of nine voting members representing the Westchester County Executive, the Putnam County Executive, the Chair of Legislators of Rockland County, the Nassau County Executive, the Suffolk County Executive, the Chair of the New York City Planning Commission representing the Mayor of the City of New York, the Commissioner of the New York City Department of Transportation representing the Mayor of the City of New York, the Chair of the Metropolitan Transportation Authority ("MTA"), and the Commissioner of DOT. NYMTC has the authority to approve a TIP of approximately one billion dollars, which includes the capital transportation budget of DOT and the MTA for the NYMTC area and the capital transportation budget of the NYC DOT. The nine members select NYMTC's Executive Director. Unlike the other MPOs in the State where a local government is the "host", DOT is the "host" agency for NYMTC.
Persons retained by NYMTC are placed on DOT's central office payroll, are subject to DOT's time and attendance rules, and are eligible for all State benefits including retirement, vacation and sick leave accruals. The employees work out of office space rented by DOT and are subject to the agency's discipline procedures. There are approximately fifty NYMTC employees on DOT's payroll. They receive their assignments and take direction from NYMTC's Executive Director who, although selected by the NYMTC board of which the DOT is but one of nine members, is on DOT's payroll. NYMTC's administrative budget is approximately 10 million dollars.
Within NYMTC, there are three sub-units: the Mid-Hudson South Transportation Coordinating Committee, the Nassau-Suffolk Transportation Coordinating Committee and the New York City Transportation Coordinating Committee. The Commissioner of DOT is an ex-officio member of each of the coordinating committees. The practice has been that the DOT [job title] would nominally represent the Commissioner on the coordinating committees. As the [ ] Committee was within [ ], [the requesting individual], as [job title], or one of his subordinates would attend committee meetings. In addition, [the requesting individual] or one of his subordinates, would have represented the Commissioner of DOT at meetings of the [ ] Council and the [ ] Council because both of the MPOs are located within DOT's [ ].
[The requesting individual] argues that because the TIP is a public document, and MPOs are supposed to be independent from DOT under federal law, he should be permitted to correspond with them.
The post-employment restrictions applicable to former State employees are found in Public Officers Law §73(8)(a), which provides as follows:
(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.
(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 or she personally participated during the period of his or her service or employment, or which was under his or her active consideration.
Subparagraph (i), known as the "two year bar", 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. Subparagraph (ii), the "lifetime bar", prohibits a former State employee from appearing, practicing, communicating or otherwise rendering services in relation to any case, proceeding, application or transaction with respect to which the former employee was directly concerned and in which he or she personally participated or which was under his or her active consideration while in State service.
In Advisory Opinion No. 89-3, the Commission found no violation of the two year bar where a former employee of the Executive Chamber appeared before an independent, statutorily-created board consisting of seven members, one of which was a commissioner of a State agency within the Executive Department. In so doing, the Commission stated:
. . . mere presence of one Executive Department officer on the Board does not change the character of the Board or make it a part of the Executive Department. There are a number of boards and councils on which heads of State departments sit by virtue of the position which they hold. The fact that these individuals serve on such boards and councils solely because of their position does not make those boards and councils part of the State agency from which the Department head comes. To find otherwise would compromise the integrity and independence of those boards and councils.
The fact that the DOT Commissioner serves ex officio on each MPO board does not, alone, make the MPO part of DOT and thus bar [the requesting individual's] appearance or rendering of services before the MPOs. Accordingly, before the MPOs other than NYMTC, [the requesting individual] may appear within two years of termination from State service. These entities, although funded with federal dollars that are allocated by DOT, are not staffed by DOT employees. While DOT is an ex officio member of the eleven MPOs, it is but one of several government members. Following precedent set in Advisory Opinion No. 89-3, [the requesting individual] may appear and render services before the MPOs other than NYMTC.
NYMTC presents a different situation, as DOT serves as its "host" agency. Under the MOU, DOT is responsible for employing NYMTC staff and paying their salaries and fringe benefits. Employees assigned to NYMTC are subject to the same time and attendance rules and agency disciplinary procedures as other DOT employees. As DOT employees at NYMTC, they are subject to the ethics provisions of the Public Officers Law, notwithstanding the fact that the federal legislation contemplated the independence of MPOs from the DOT. See Council on Vocational Education v State Ethics Commission (91-CV-1145).
Thus, it seems clear that NYMTC's employees on DOT's payroll are subject to the revolving door provisions and could not appear, practice or render services for compensation before DOT after leaving the State's service. For purposes of the post-employment restrictions, the Commission shall equate NYMTC with DOT, [the requesting individual's] former agency. Since the two year bar would preclude former DOT employees assigned to NYMTC from appearing before DOT, former DOT employees could not appear before NYMTC.
Notwithstanding the foregoing, [the requesting individual] may request from NYMTC copies of its approved TIP since it is a public document and its release to a member of the public is exercised without any discretion on the part of the agency. (The Commission notes that the TIP is posted on, and may be downloaded from, NYMTC's website.) In this limited circumstance, the two year bar would not prohibit [the requesting individual] from making such a request of NYMTC. However, he may not appear, practice or render services for compensation before it for two years following his separation from DOT.
Notwithstanding the Commission's conclusion that the two year bar does not preclude [the requesting individual's] appearance before MPOs other than NYMTC without violating the two year bar, there remains the possibility that the lifetime bar may preclude him from appearing before the other MPOs on particular issues in which he was directly concerned and personally participated while employed as [job title] of [ ]. The Commission notes that two of the MPOs, the [ ] Council and the [ ] Council, are located within the boundaries of [ ] and that as [job title], he was the Commissioner's representative to these bodies. For example, if [the requesting individual] voted to approve a certain capital appropriation or directed his subordinate to take a certain action on the appropriation, he cannot now appear before the MPO and ask that the Council reconsider its prior action. As determinations relative to the lifetime bar are made on a case-by-case basis, [the requesting individual] is encouraged to contact the Commission should an issue present itself.
The Commission concludes that the two year bar of Public Officers Law §73(8)(a)(i) does not prohibit [the requesting individual] from appearing before the MPOs, with the exception of the NYMTC. He may request an approved TIP from NYMTC since it is a public document and that the agency has no discretion on its release. He may not otherwise appear, practice or render services for compensation before NYMTC during his two year post-employment period.
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.
All concur:Paul Shechtman, Chair
Dated: May 7, 1999