|Advisory Opinion No. 99-14:||Application of Public Officers Law §73(8)(a)(i) to a former employee performing rehabilitation services for an agency that is licensed by his former agency.|
The following advisory opinion is requested by [ ], a former employee of the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"), who asks whether the post-employment restrictions contained in Public Officers Law §73(8)(a)(i) would prohibit him from rendering services for an agency that provides services to mentally retarded and developmentally disabled individuals. On June 10, 1999, the New York State Ethics Commission ("Commission") issued an informal opinion that concluded the proposed employment was permissible. [The requesting individual] has since requested that the Commission issue a formal advisory opinion on the question.
Pursuant to the authority vested in the Commission by §94(15) of the Executive Law, and considering the precedent established in Advisory Opinion No. 94-15, the Commission renders its opinion that the two year bar does not preclude [the requesting individual] from rendering the proposed services.
On [date], [the requesting individual] retired from OMRDD, where he had held the position of [job title] for the [ ] Developmental Disabilities Services Office ("DDSO"), serving as [ ] Coordinator. Prior to [date], he was the [job title] in [ ] County and responsible for that DDSO's operations.
[The requesting individual] has taken a position as a rehabilitation counselor with [ ], a not-for-profit provider of services which is licensed by and has its rates set by OMRDD. According to his job description for [the provider], [the requesting individual] would be responsible for providing individual and group rehabilitation counseling services to consumers, including assessment analysis, job development and job coaching; advocating and problem solving for consumers; assisting program participants in attaining skills to enable them to transition into community employment; and coordinating services for program participants.
The position with [the provider] will provide [the requesting individual] the opportunity to provide direct care to individuals who are mentally or developmentally disabled, or physically impaired. His contact with his former agency would be limited to clinical contact at OMRDD initiated case conferences. Currently, five out of the twenty-eight individuals who are on his caseload are under the supervision of the [ ] DDSO; the other individuals are under the supervision of other State or county agencies. None of the people he serves resides in a State-operated residence or family care home. [The requesting individual] states that he will not be involved in preparing contracts, applications or other materials at [the provider]. He does not need a license from OMRDD to practice rehabilitation counseling.
Public Officers Law §73(8)(a)(i) provides:
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.
This subdivision, part of what is generally referred to as the "revolving door" provision, sets 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.
Public Officers Law §73(8)(a)(i) precludes a former State employee from appearing, practicing or rendering services in relation to a matter before his or her former agency. The term "appearance" has been broadly construed by the Commission. It includes a physical appearance, as well as various types of submissions which are signed by a former employee or which involve identifying matter specific to the individual. For example, the Commission has held that submission to a former agency by a former employee of a permit application, a grant application, a contract proposal or a professional stamp or seal constitutes a prohibited appearance.
In Advisory Opinion No. 94-15, the Commission held that Public Officers Law §73(8)(a)(i) prohibits former OMRDD employees from providing medical or clinical services to clients of their former agency residing in OMRDD-operated facilities. However, the Commission also found that such former employees may treat OMRDD patients residing in community facilities operated by entities other than OMRDD provided that other conditions, as discussed below, were met. The Commission stated:
In treating residents of community facilities, former OMRDD employees must remember that only the rendering of medical or clinical services to agency clients residing in such community facilities is permitted. They may not appear, practice, or render services for compensation in any matter before their former agency during the two-year post-employment period. For example, a former OMRDD employee, who is otherwise permitted to provide medical or clinical services for agency clients at a community facility, may not assist the facility in any way in preparing for or responding to an OMRDD inspection of the facility, or in preparing a license application or funding request.
[The requesting individual] advises that his direct contract with his former agency will be limited to OMRDD initiated case conferences. The Commission, in Advisory Opinion No. 94-15, considered that there may be the possibility that an OMRDD employee may wish to contact a former OMRDD employee concerning the treatment provided to a client residing in the community. The Commission held that such discussions may take place without a violation of the two year bar if OMRDD initiates the discussion and the former OMRDD employee does not charge for any time spent discussing matters with the OMRDD employees.
Given [the requesting individual's] assertions that he will be providing clinical services only as a rehabilitation counselor to individuals who do not reside in State operated facilities and that he will not be involved in preparing contracts or other materials for [the provider], the Commission concludes that post-employment restrictions of Public Officers Law §73(8)(a)(i) do not preclude him from rendering the services as described. If the facts are otherwise, a different result may be warranted under the Public Officers Law and the Commission's precedents.
The Commission, considering the precedent established in Advisory Opinion No. 94-15, concludes that the two year bar of Public Officers Law §73(8)(a)(i) does not preclude [the requesting individual] from rendering the proposed services.
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: September 15, 1999