Post-Employment Restrictions and Limitations

1. Post-Employment Restrictions and Limitations

2. 1987 - Ethics in Government Act REVOLVING DOOR • Prevents former government employees from unfairly profiting or trading upon contacts and knowledge acquired in public service • Responds to a need to impose stricter controls without making State service completely unappealing

3. Who Is it Applicable to • State officers and employees. • Employees of: • State agencies; • State public benefit corporations; • State authorities; • The State University of New York (“SUNY”); and • The City University of New York (“CUNY”). • **One does not need to be designated a policymaker to be covered. • Students (as defined) are not “employees”.

4. Public Officers Law §73(8)(a)(i)Two Year Bar 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.

5. Who Is Excluded • Non-paid or per diem members of boards, commissions, councils, public authorities and public benefit corporations are not deemed State officers or employees for purposes of the revolving door, and are not subject to its provisions. • *Codes of Conduct may include comparable post-employment restrictions.

6. Date of termination • Date of termination is the last date on the payroll. • Employees on leave without pay or on employee organization leave are considered current employees. • Their two year period begins when their employment leave is terminated.

7. What is Your Former Agency • The agency where you were last employed • Possibly more than one former agency • Assignment to another agency • Transfer from another agency • Merger of two agencies • Option to return to a position vacated

8. Prohibited Appearances • In general, you may not appear before your former agency.

9. You May Not • Negotiate contracts, participate in field audits, or represent a client in reviews • Write, prepare or submit grant proposals • Engage in settlement discussions • Submit periodic status reports, final report of findings or billing invoices

10. You May Not • Submit a resume for approval to work • Work on an application or proposal to be submitted, or have a role in negotiating the terms of an application or proposal • Make a Freedom of Information Law request on behalf of a client. (You may make a FOIL request on your own behalf) • Contact key personnel to collect data

11. Contracts • Contracting with your former agency during the two year post-employment period is barred. • Submitting a contract proposal is barred. • Overseeing a contract between an entity and your former agency is barred.

12. Contracts • You may be paid pursuant to a contract between your former agency and a new employer as long as your former agency has no role in approving the hiring and your work is not submitted to or approved by the former agency. Your name appearing on a payroll voucher is not, in and of itself, a prohibited appearance.

13. Contracts • Once a contract is awarded, the contract itself is not a matter before the agency, and a former employee is not barred from working on it merely because his former agency awarded it.

14. Work Before Other than the Former State Agency If you, as a former employee, have reason to know or anticipate, through a law, regulation or policy, that your private sector work will be referred by one State agency to your former agency, you will be in violation of the two year bar.

15. General Information and Public Information Is OK • Preparation of a general report to be used by potential funding applicants to your former agency is not a violation, as long as it is not tied to a specific application. • Providing general information on the requirements of your former agency, unrelated to a specific case, is permissible

16. General Information and Public Information Is OK • A former employee may attend public hearings held by the former agency and receive mailings consisting of documents filed in a matter if members of the public can attend and receive the same.

17. Permissible Appearances • Unpaid services performed by a former employee at the request of the State and for the benefit of the State are not a violation of the two year bar. • Appearing before your former agency as afact witness in compliance with a properly issued subpoena is generally not in violation of the two year bar.

18. Permissible Appearances • You may work as a consultant to a State agency other than your former agency within the two year period. • You may work for an entity which is licensed or regulated by your former agency, so long as none of your work product is submitted to the former agency and you have no business contact with former colleagues.

19. Permissible Appearances • Mere entry of data provided by others into a computer program which will generate forms to be submitted to your former agency does not constitute rendering services.

20. “receive compensation for any services rendered” • You cannot be paid for helping to develop an application submitted to your former agency or for formalizing a plan for influencing a decision of that agency.

21. A case, proceeding, application or other matter “before” your agency. • Prohibits “back room” services rendered on a matter before your former agency for which you are compensated. • Example: You may not directly participate in a telephone call with your former agency even where the call is placed by a colleague at your current place of employment, or instruct or advise the colleague placing the call

22. A case, proceeding, application or other matter “before” your agency. • An application or contract proposal is under the jurisdiction of an agency at all times, whether or not the agency has received the documentation. • Work on an application “prior to submission” to your former agency is prohibited. It is before the agency, although not yet submitted.

23. A case, proceeding, application or other matter “before” your agency. • It is irrelevant that your former agency does not know that you are working on the matter at the time.

24. Court Actions • The two year bar does not preclude a former state employee from serving as an expert witness in a case involving your former agency once a court action has been commenced. (Before the courts) • (**Possible lifetime bar.)

25. Public Officers Law §73(8)(a)(ii)Lifetime Bar 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.

26. Public Officers Law §73(8)(a)(ii)Lifetime Bar • Determinations must be made on a case-by-case basis. • Determinations are factually specific.

27. “case, proceeding, application or transaction” • When it is substantially the same issue, it may also be the same transaction, even when the form in which the issue is presented is not identical.

28. “case, proceeding, application or transaction” • Bills introduced in the same or different legislative sessions may constitute the same transaction, if affect the same or substantially the same population and present the same issues.

29. “case, proceeding, application or transaction” • Change in the scope and nature of a construction project does not render it a different transaction. • Look to: • The essential nature of the transaction, • The agencies involved, • The property to be (re)constructed • The basic concept of (re)construction, and • Was there any significant break in project activity?

30. “case, proceeding, application or transaction” • Personal participation in a purchase transaction will bar participation in a later sale of equipment to be used with the items originally purchased.

31. “case, proceeding, application or transaction” • Each year’s State budget is a separate transaction

32. Prohibited Appearances • The lifetime bar prohibits a former State employee from serving as an expert witness in any case in which he was involved while employed by his former agency. • You may not make a compensated appearance before a court in a case arising out of a matter in which you were directly concerned and personally participated while in State service. • ** Appearing in compliance with a properly issued subpoena as a fact witness is generally not in violation of the lifetime bar. There may not be compensation beyond statutory witness fees.

33. Permissible Appearances • Knowledge and methodologies developed while in State service may be applied in new settings after leaving State service. • Similarly, a manual developed while in state service but within the public domain, may be utilized to provide training to the types of organizations to which you provided training as a former State employee.

34. Permissible Appearances • You may also provide your former agency with information about new training and attend meetings, even if you were responsible for training while in State service, as long as the content of the training program is new.

35. Permissible Appearances • The lifetime bar does not preclude a former state employee from teaching a course developed after leaving state service utilizing expertise gained while in state service, unless the materials contain confidential or proprietary information of the agency.

36. “directly concerned” • Personal participation and direct concern in a specific case.

37. “in which he or she personally participated . . . or was under his or her active consideration.” • More than an awareness of or informal conversation concerning the circumstances • More than mere acquaintance with or knowledge of a fact or circumstance. • More than presence at a meeting where an issue is discussed.

38. Agency Heads • Transactions handled by senior staff are imputed to the agency head. • A former agency head cannot work on the same transaction handled by top level staff.

39. Supervisors • Activities are imputed to the supervisor where the active employees are in the supervisor’s unit

40. Where Does the Lifetime Bar Apply? • Before other agencies (pursuant to contract or as a consultant) • Before the Legislature • Before Congress and federal executive branch agencies • Anywhere

41. Unpaid Contacts • Your former agency may contact you to seek information about your acts as an employee, but they may not pay you for the information • Unpaid service as a “volunteer” on a State board, Commission or Council by a former employee does not violate the two year or lifetime bar.

42. EXCEPTIONS TO THE POST-EMPLOYMENT RESTRICTIONS

43. Government-to-Government • Public Officers Law §73(8)(e), allows a former employee to appear, practice, communicate or render compensated services before a State agency if he or she is acting as an elected official or employee of a federal, state or local government or one of its agencies. • *does not apply to paid consultants of governmental entities

44. Closely Affiliated Corporations • When employees of a State agency transfer to, or retire to the payroll of a not-for-profit corporation recognized by the State Finance Law as being closely affiliated with their former agency, they may appear before their former agency. • Only when the transfer is to that state agency’s closely affiliated corporation. (e.g. DOH to HRI) • The two year bar will not commence to run until you leave the employment of the closely affiliated corporation.

45. Agency Head Certification (2004) • A former state officer or employee may contract with his or her former agency when: • The agency head certifies in writing to the Commission • that such former employee has expertise or knowledge with respect to a particular matter • which is otherwise unavailable at a comparable cost. • The Commission must review and approve all such certifications.

46. Health Care Professionals (2004) • Former State-employed health care professionals may treat patients and clients at the State facility which formerly employed the health care professional. • Continuity of Care.

47. The Hardship Exemption • There is NO hardship exemption • Public Officers Law §73(8) does not contain any provision by which an individual can apply for a “hardship exemption”; absent a specific statutory exemption, it is beyond the Commission’s statutory authority to grant such a request.

48. Advisory Opinion 06-01 • Guidelines with regard to employment related communications with entities which have matters before the State employee.

49. Advisory Opinion 06-01 1.) A State employee may not solicit a post-government employment opportunity with any entity or individual that has a specific pending matter before the State employee. AND A State employee must wait 30 days from the time a matter is closed or the employee has no further involvement before soliciting an employment opportunity;

50. Advisory Opinion 06-01 2.) A State employee who receives an unsolicited employment-related communication from such an entity or individual cannot pursue employment with the entity or individual OR He or she must recuse themselves from the matter and any further official contact with the entity or individual and wait 30 days before further communication.