|Advisory Opinion No. 97-13:||Application of the two year bar of Public Officers Law §73(8)(a)(i) to an employee of the New York State Office of Real Property Services who anticipates leaving State service and teaching a course at an assessors' conference.|
The following advisory opinion is issued in response to a request submitted by [ ], an employee of the New York State Office of Real Property Services ("ORPS"), who seeks a determination as to whether he may, upon leaving State service, teach certain appraisal courses at a conference of the New York State Assessor's Association ("Association").
Pursuant to its authority under Executive Law §94(15), the New York State Ethics Commission ("Commission") hereby renders its opinion that Public Officers Law §73(8)(a)(i) would not prohibit [the requesting individual] from teaching the courses as proposed, as he would not be required to appear before ORPS or render services in relation to a matter before ORPS.
[The requesting individual] has been an employee of ORPS for approximately [ ] years. He currently serves as a [ ] Specialist [ ]. In this capacity, he conducts field work out of [a field] office.
ORPS is responsible for certifying and providing training to real property assessors. All assessors, whether appointed or elected, must obtain certification from ORPS of successful completion of the basic course of training prescribed by the agency (Real Property Tax Law §310[a]). Certain assessors are required to complete, in addition to the basic course, further training prescribed by the agency (Real Property Tax Law §310[b]). By statute, ORPS must provide training programs, including the courses of training and education required to be completed by assessors (Real Property Tax Law §310). The cost of travel and other actual and necessary expenses incurred by assessors in satisfactorily completing the required courses are reimbursed by the agency (Real Property Tax Law §318; see also, 9 NYCRR Part 188).
ORPS formerly provided a course entitled "Appraisal Approaches" as part of its training program. [The requesting individual] had served in the agency's training unit, where he taught this course. [ ].
ORPS no longer teaches Appraisal Approaches. It has been replaced by two courses -- Introduction to Real Estate Appraisal, and Valuation Principles and Procedures -- that are taught by the Department of State ("DOS"), which licenses real estate appraisers. DOS certifies individuals who are qualified to teach these courses and approves the content of the courses. DOS also licenses the sites at which they are offered. Thus, each time an entity arranges for the teaching of these courses, DOS must license both the instructor and the site.
[The requesting individual] has been certified by DOS to teach assessor courses. He will be retiring from State service on [date], and he has been asked to teach the Introduction to Real Estate Appraisal and Valuation Principles and Procedures courses at the summer conference of the Association. This conference is scheduled to be held at [location] on [a later date]. It is sponsored by ORPS, which contracts with [ ] for the space at which the conference will be held. ORPS also sends registration forms and a packet of information to those who may be interested.
There will be eight courses offered at the conference, six of which will be taught by ORPS and for which there will be no charge. The two courses to be taught by the Association will cost approximately $250-$300 each. As previously noted, individuals who take these courses are eligible for reimbursement of their expenses from ORPS.
There is no contract or other written agreement between ORPS and the Association, and ORPS does not pay the Association for teaching the courses. The fees for the courses are paid by the assessors directly to the Association, and they then seek reimbursement from ORPS. The vouchers which are submitted to obtain reimbursement do not include the instructor's name. ORPS would learn of the instructor's name only on a class evaluation form, which ORPS asks, but does not require, students who take the courses to complete.(1)
[The requesting individual] has asked the Commission to determine whether, upon leaving State service, he may teach the assessor courses for the Association at the conference.
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 provision, part of what is generally referred to as the "revolving door" statute, 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. It provides for a two year absolute bar on a former employee's appearing, practicing or rendering services for compensation in relation to any matter before his or her former agency.
The question before the Commission is whether [the requesting individual's] teaching of the two courses for the Association at the August conference would constitute his appearing before ORPS or rendering services in relation to a matter before ORPS. In analyzing the post-employment statute, the Commission has, on numerous occasions, considered whether the post-employment activities of an employee constitute an "appearance" before his or her former agency. Traditionally, the Commission has broadly interpreted the application of the term "appearance." For example, the Commission has held that a former employee may not communicate on behalf of a client with the former agency's staff (Advisory Opinion No. 89-7); write, prepare or submit a grant proposal to the former agency (Advisory Opinion No. 90-21); or negotiate contracts, participate in field audits or represent clients before the former agency (Advisory Opinion No. 90-4). A former employee is also precluded from contracting with his or her former agency (Advisory Opinion No. 94-21); or performing services for a private entity which is funded by the former agency if the agency has a role in approving the hiring of the former employee or if the former employee's work product, pursuant to contract or regulation, is submitted to or approved by the former agency (Advisory Opinion Nos. 90-21, 89-8).
Despite its broad application of the term, the Commission has held that certain activities do not constitute a prohibited appearance. These include providing general information on the requirements of the former agency, unrelated to a specific case (Advisory Opinion No. 90-3); being paid from funds received from a legislative appropriation made to a private entity which is passed through one's former agency under certain conditions (Advisory Opinion No. 90-3); and renewing a professional license (Advisory Opinion No. 94-2).
Under the circumstances described here, the Commission concludes that [the requesting individual's] proposed activity would not constitute a prohibited appearance. While ORPS has specified that the two appraisal courses that [the requesting individual] would teach are required as part of the training for assessors, it is DOS, rather than ORPS, that specifies the content of the courses and certifies the instructors.
Furthermore, the Association, and not ORPS, would be retaining [the requesting individual]. Although ORPS sponsors the conference and obtains the space, it does not pay the Association for its offering the courses. All funds are derived from those who pay to take the courses. Thus, if [the requesting individual] were to teach, he would not be paid with agency funds. The Commission recognizes that those who pay the fee will seek reimbursement from ORPS, but this arrangement does not constitute funding of the teachers by ORPS. Since the instructor's name does not appear on the vouchers which the students submit for reimbursement, ORPS would not learn of the identity of the teacher. It is the Commission's understanding that the only time [the requesting individual's] name might be submitted to ORPS would be on the voluntary evaluation forms which the students may, but need not, complete. Finally, the Commission notes that these courses have already been approved by ORPS based on their syllabi without knowledge of who the instructor will be.
The Commission also concludes that [the requesting individual] would not be "rendering services" on a matter before his former agency. In Advisory Opinion No. 94-4, the Commission held that a former State employee could not work for a private entity which had a contract with his or her former agency where the work to be performed was pursuant to the contract. It determined that the contract was a matter before the agency, and the former employee would be rendering services for compensation in relation to that matter.
What makes [the requesting individual's] situation different is that there is no contract between ORPS and the Association for the teaching of the courses. While ORPS sponsors the conference, and arranges and pays for the space, it does not pay for the teachers. Without a contract for teaching between ORPS and the Association, [the requesting individual's] work will not be pursuant to a contract with his former agency, and will, therefore, not be in relation to a matter before the agency. Thus, his rendering of services is not in violation of §73(8)(a)(i).
The Commission concludes that Public Officers Law §73(8)(a)(i) would not prohibit [the requesting individual] from teaching the required assessor training courses at the Association's Summer Conference, as [the requesting individual] would not be required to appear before ORPS or render services in relation to a matter before ORPS.
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.
Evans V. Brewster,
Angelo A. Costanza,
Donald A. Odell, Members
Dated: June 9, 1997
1. In conversations with Commission staff, ORPS' staff indicated that they pre-approve courses and ask for the instructor's name if it is known at that time. ORPS may, however, approve the course based on the course material and without knowing the instructor. It is the Commission's understanding that new forms are being drafted which do, in fact, ask for the instructor's name. However, once a course syllabus has been approved, the course does not have to be submitted for approval each time it is given. It is the Commission's understanding that the subject courses have already been approved by ORPS and that it is not aware of who will be teaching them.