Post Employment Restriction and Limitations The Department of by idv45773

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									Post-Employment Restrictions
       and Limitations




                               1
 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
                                          2
            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”.

                                                                    3
 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.
                                                 4
           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.

                                               5
          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.


                                                6
   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


                                             7
       Prohibited Appearances
• In general, you may not appear before
  your former agency.




                                          8
              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



                                                 9
              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
                                             10
                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.



                                              11
                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.

                                              12
                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.




                                              13
   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.



                                        14
  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
                                            15
  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.



                                               16
      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 a
  fact witness in compliance with a properly
  issued subpoena is generally not in
  violation of the two year bar.

                                           17
      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.

                                              18
      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.




                                               19
   “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.




                                              20
 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
                                            21
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.

                                               22
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.




                                          23
               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.)




                                             24
  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. 25
  Public Officers Law §73(8)(a)(ii)
              Lifetime Bar

• Determinations must be made on a case-
  by-case basis.
• Determinations are factually specific.




                                           26
  “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.




                                                27
  “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.




                                              28
  “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?                                  29
  “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.




                                                  30
 “case, proceeding, application or
           transaction”

• Each year’s State budget is a separate
  transaction




                                           31
         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.

                                                         32
      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.

                                            33
     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.




                                            34
      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.




                                            35
          “directly concerned”


• Personal participation and direct concern
  in a specific case.




                                              36
     “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.
                                           37
            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.



                                         38
               Supervisors
• Activities are imputed to the supervisor
  where the active employees are in the
  supervisor’s unit




                                             39
    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

                                          40
          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.

                                           41
EXCEPTIONS TO THE
POST-EMPLOYMENT
  RESTRICTIONS




                    42
    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
                                                          43
    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.
                                                      44
 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.
                                                       45
 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.




                                                 46
    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.


                                             47
       Advisory Opinion 06-01


• Guidelines with regard to employment
  related communications with entities which
  have matters before the State employee.




                                           48
           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;                          49
          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.        50
           Advisory Opinion 06-01
                      AND
3.)   A State employee must promptly notify his
      or her supervisors and ethics officers of
      such employment-related
      communications whether or not they
      intend to pursue the employment
      opportunity.


                                             51

								
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