|Advisory Opinion No. 94-8:||Whether the government-to-government exception to Public Officers Law §73(8) applies to an uncompensated appointee of a Town.|
Pursuant to its authority under Executive Law §94(15), the Commission concludes that the government-to-government exception to Public Officers Law §73(8) allows a former State employee to serve by appointment on a local planning board which may have contact with his former agency within two years of his having left State service.
As [job title], [the requesting individual] was responsible for the management, administration and direction of all [ ] programs in [a specific area]. He also acted as the principal representative of [the State agency] in the [area].
Specifically, [the requesting individual] was delegated the authority and responsibility to:
Represent the Commissioner and the [State agency] within the [area] and maintain liaison with State and Federal agencies, organizations, municipalities, elected officials, and the media;
Plan and manage [ ] projects, including participation with local government agencies in [ ] systems planning, developing a program consistent with [the State agency] goals and finances, selecting projects and ensuring the program achieves its goals; and
In those regions with Metropolitan Planning Organizations ("MPOs"), participate in the development and updating of an MPO's long range plan and improve (on behalf of the Commissioner) [program amendments]. Represent the Commissioner on MPO Policy Committee, as requested by the Commissioner [ ].
Regional planning boards may be established pursuant to General Municipal Law §239-b. The governing bodies of cities, towns and villages in any county or counties may collaborate in establishing a regional or metropolitan planning board to consist of representatives of the constituent municipalities to be selected in a manner to be determined by the participating municipalities. Members of regional planning boards receive no salary or compensation for their services (General Municipal Law §239-d) but are entitled to expenses (General Municipal Law §239-c).
Pursuant to General Municipal Law §239-d, the powers of a regional planning board include:
. . . .
(to) study the needs and conditions of metropolitan, regional, county and community planning in such . . . area covered by constituent municipalities and prepare and adopt in whole or in part . . . a comprehensive master plan for the development of the entire area . . . municipalities participating, which master plan shall include the [structures]
. . . .
(to) hold a public hearing or hearings thereon at which representatives of the regional or county planning board, the state commissioner of [the State agency] or his representative . . . and others interested shall be heard. . . . Before the final approval of any plan involving the construction of reconstruction of any state . . . [structure] . . . regional planning board shall be given an opportunity to examine such plans and offer suggestions with respect thereto
. . . .
(to) receive and expend . . . apply for and accept grants from . . . state government and enter into contracts for and agree to accept such grants
. . . .
After [the requesting individual's] retirement from [the State agency], he was appointed by the Town Supervisor of the Town of [ ] to represent the Town of [ ], the town in which he resides, on the Board as one of the Town's two representatives. The Board is comprised of representatives from 11 municipalities [ ].
According to [the requesting individual], he "suspects" that there will be some contact between the Board on which he seeks permission to serve and [the State agency]. To date, he believes that the only contact that the Board has had with [the State agency] was to offer support for the plan for [ ] in New York State.
Presently, the Board is involved in creating [an] Authority to address the [ ] needs of [ ] and to address the [ ] needs for [ ]. This activity might bring the Board into contact with [the State agency]. [The requesting individual] believes that it is likely that this activity will involve the [ ] Authority and not the Board.
[The requesting individual] notes that the Board has no review or approval function over [the State agency] projects. Such approval is vested either by the [ ] Regional Planning Board located in [ ], New York, or at the [ ] Regional Planning Board in [ ], New York.
Public Officers Law §73(8) 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. . . .
The government-to-government exception to Public Officers Law §73(8) provides:
This subdivision shall not apply to any appearance, practice, communication or rendition of services before any state agency . . . or to the receipt of compensation for such services, rendered by a former state officer or employee . . . which is made while carrying out official duties as an elected official or employee of a federal, state or local government or one of its agencies (emphasis added).
In the instant matter, [the requesting individual] acknowledges that there may be contact between the Board and [the State agency]. Should this contact result in [the requesting individual's] appearance before his former agency within two years of his separation from [the State agency], the issue raised is whether his service to the Board, a local government entity, is covered by the government-to-government exception to the two year appearance prohibition contained in Public Officers Law §73(8).
There is no question that a member of a regional planning board is a public officer. See: 20 Op. State Compt. 430 (1964). In that Opinion, the State Comptroller, citing a previous opinion, 18 Op. State Compt. 327 (1962), found that, ". . . [t]he powers vested in a regional planning board member by section 239-b and 239-d of the General Municipal Law requires the exercise of certain sovereign power which distinguishes him from an ordinary employee. Because of the discretion entrusted to him and the relative independence enjoyed by him in the exercise of his duties, it was then, and is now, our opinion that a member of such board, is a public officer."
However, the language of the government-to-government exception provides that it applies to "an elected official or employee" of a local government entity. [The requesting individual] is not elected nor is he an employee in the traditional sense. The Commission must determine whether [the requesting individual's] status as an appointed, uncompensated member of the Board may be equated to that of an employee.
In Advisory Opinion No. 89-5, which preceded the Legislature's amendment of Public Officers Law §73(8) to provide for the government-to-government exception, the Commission concluded that a former State employee could appear before his former State agency within the two year post-employment period as an employee of a town because ". . . the 'client' is the same: the public-at-large." In addressing the issue, the Commission stated:
The "evil" to be avoided--the misuse of knowledge and contacts to the benefit of a private client--would not be a possibility in the case now before us. Application of §73(8) is triggered when a State officer or employee leaves State (or "public" service), and joins the non-governmental (or "private") sector.
In the instant matter, [the requesting individual] would not be representing a private client. He would be representing the Town of [ ] as a member of the Board, a local government entity. He receives no compensation for his service. Therefore, the Commission concludes, following the rationale of Advisory Opinion 89-5, that [the requesting individual's] status as an appointed member of the Board may be equated to that of an employee, within the government-to-government exception to Public Officers Law §73(8).(1)
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.
Joseph M. Bress, Chair
Barbara A. Black,
Angelo A. Costanza,
Robert E. Eggenschiller,
Donald A. Odell, Members
Dated: May 3, 1994
1. This conclusion is consistent with Public Officers Law §18 which provides for the defense and indemnification of officers and employees of public entities. Public Officers Law §18 defines the term "employee" to include "any . . . member of the public board . . . or any person holding a position by . . . appointment . . . in the service of a public entity, whether or not compensated . . ." "Public Entity" is defined to include a county, city, town, village or any other political subdivision or civil division of the State.