POST-EMPLOYMENT RESTRICTIONS

Christopher M. Hammer

Deputy General Counsel

NYC Conflicts of Interest Board

A. Introduction

The post-employment restrictions of Chapter 68 of the Charter, contained in Charter §

2604(d), are applicable to all City employees who leave their City jobs for the private sector,

without regard to level of responsibility, scope of discretion, or length of time in City service.

As stated by the Board in Advisory Opinion Number 95-1, citing Advisory Opinion Number 94-

15, these restrictions seek “to prevent former public servants from exploiting public office for

personal gain, subordinating the interests of the City to those of a prospective employer, or

exerting undue influence on government decision-making.”

There are four post-employment restrictions on City employees. These restrictions

address: (1) negotiating for a job with a private employer who is involved with a particular

matter the City employee is working on in his or her City job; (2) appearing before one’s former

City agency within one year after leaving City service; (3) working on a particular matter that

one worked on personally and substantially as a City employee; and (4) using or disclosing

confidential information gained in City service. Each of these restrictions is discussed below.

It should be emphasized that the post-employment restrictions regulate the conduct of

present and former City officers and employees, not the conduct of private firms. Therefore,

even though a former City employee may not appear before that employee’s former City agency

for one year after leaving City service and may not work on a particular matter the employee

worked on while in City service, the employee's new firm may appear before the employee’s

former City agency and may work on such a particular matter.

B. Applying For Private Sector Employment

Charter § 2604(d)(1) prohibits public servants from soliciting, negotiating for, or

accepting a position with any person or firm who or which is involved in a particular matter

with the City while the public servants are actively considering, directly concerned, or personally

participating in such particular matter on behalf of the City. The term “public servant” is

defined as “all officials, officers and employees of the city, including members of community

boards and members of advisory committees, except unpaid members of advisory committees

shall not be public servants.”

Understanding what constitutes a “particular matter” is critical to interpreting the

Charter’s provisions on post-employment restrictions. Charter § 2601(17) defines “particular

matter” as “any case, proceeding, application, request for a ruling or benefit, determination,

contract limited to the duration of the contract as specified therein, investigation, charge,

accusation, arrest or other similar action which involves a specific party or parties, including

actions leading up to the particular matter; provided that a particular matter shall not be

construed to include the proposal, consideration, or enactment of local laws or resolutions by the

council, or any action on the budget or text of the zoning resolution.”

As the legislative history to Chapter 68 makes clear, the drafters of Chapter 68 intended

that the term “particular matter” be construed narrowly. The Charter Revision Commission

wrote:

The term particular matter, used in the post-employment

prohibitions contained in 2604(d), defines those matters engaged in

by public servants during their public employment in relation to

which they may not make appearances before city agencies, or

accept employment or remuneration for services, after leaving city

service. The definition excludes work performed in relation to

general subject matters or policy issues where the results apply to

categories of individuals rather than a specific party or parties.

Moreover, the prohibition which is found in section 2604(d)

applies only when the same specific party or parties continue to be

involved in the particular matter. Given the permanent nature of

the post-employment prohibition, the definition of “particular

matter” is intended to be construed narrowly.

In keeping with this definition of “particular matter,” the Board determined, in Advisory

Opinion Number 93-8, that, where a public servant’s work consisted of research and analysis on

a public policy issue affecting a large number of City residents and was neither directed at, nor

geared to, any individual party or contract, and did not require recommending, or negotiating for,

any services to be rendered to the City, his or her work related to a general subject matter or

policy issue with broad impact on a class or category of individuals and was thus excluded from

the scope of a particular matter. Accordingly, it was permissible for this public servant—whose

limited contact with a specific corporation was only to gather data for this research—to solicit,

negotiate for, and (if offered) accept a position with that corporation.

Before discussing job opportunities with a private firm, a public servant must be sure that

he or she does not currently have any dealings with that firm in his or her City job. For example,

if a public servant is reviewing a grant application that ABC Corp. has submitted to the public

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servant’s agency, the public servant cannot discuss any future employment with ABC Corp. until

the public servant’s responsibilities with respect to the grant application are completed, or until

the public servant’s supervisor has, at the public servant’s request, assigned the official duties

concerning ABC Corp. to another public servant in the agency.

The case of COIB v. Dempsey

illustrates this point. In Dempsey, the Board fined a

former Budget Director and Senior Director for Strategy and Program Development for New

York City Housing Authority (“NYCHA”) $9,500 for negotiating for and accepting a position

with a firm while working on NYCHA matters with the firm, including authorizing NYCHA

work and payments to it. The successful employment negotiations took place over a ten-month

period and included numerous emails and in-person meetings. Similarly, in 2017, the Board

fined a former Project Manager at the New York City Mayor’s Office of Housing Recovery

(“HRO”) $6,000 for having several conversations and a first-round interview for a position with

a private construction contractor he was overseeing as part of his City duties and also for

communicating with HRO on behalf of the firm in his first post-employment year in violation of

the one-year appearance ban, discussed in Section C below.

The prohibition against soliciting a position with a firm whose matter a City employee is

handling, while perhaps more often referenced for employees who are looking to leave City

service, applies equally to a City employee who is looking for a part-time private sector position.

In 2013, in a joint resolution with the Board and the New York City School Construction

Authority (“SCA”), an SCA Project Officer agreed to serve a six-week suspension, valued at

approximately $10,400, for soliciting and accepting a part-time position with a firm whose work

he supervised for SCA, as well as for soliciting a $15,000 loan from an SCA contractor.

Job searches, like any other private activity conducted by a City employee, must be

conducted on the public servant’s own time and the public servant may not use his or her official

City position or City resources, letterhead, equipment, personnel, or materials in connection with

his or her job search.

Thus, the Board issued a public warning letter to the Chief of the Division

of Engineering for the New York City Department of Environmental Protection (“DEP”) Bureau

of Wastewater Treatment for using his DEP e-mail account to send his resume to nine

employers—including one government entity—while he played an oversight role in managing

the DEP projects of several of those employers.

In 2015 the Board reaffirmed this holding in

fining, after a full trial, a former high-ranking official of the New York City Health and Hospitals

Corporation (“HHC”) $3,000 for misusing his HHC e-mail account by using it to solicit private

employment and for addressing this solicitation to executives of a private firm whose contract

with HHC the official was responsible for overseeing.

C. One-Year Appearance Ban

Chapter 68 contains two provisions regarding the one-year appearance ban. The first

provision, Charter § 2604(d)(2), applies to most public servants. This provision prohibits public

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servants from appearing before the City agency served by the public servant within a period of

one year after termination of his or her service with the City. The second provision, Charter §

2604(d)(3), applies to a small number of individuals holding specified positions in City

government, including elected officials, Deputy Mayors, Director of the Office of Management

and Budget, Commissioner of the Department of Citywide Administrative Services, Corporation

Counsel, Commissioner of Finance, Commissioner of Investigation, and Chair of the City

Planning Commission. The holders of these positions are prohibited from appearing before the

branch of City government in which they served within a period of one year after termination of

their service with the City. For purposes of this provision, the legislative branch of City

government consists of the City Council and the offices of the Council, and the executive branch

consists of all other agencies of the City, including the office of Public Advocate.

Consistent with Charter § 2604(d)(3), the Board, in Advisory Opinion Number 92-13,

prohibited a former high-level public servant, who held one of the positions listed in Charter §

2604(d)(3), from communicating, on behalf of his private employer, with City agencies in the

branch of government he served until one year from the date of his termination from City

service.

For purposes of the one-year ban on a public servant’s appearances before his or her

former agency, the date of termination from City government (and thus the date on which the

one-year appearance ban begins to run) is the date on which a public servant effectively stops

working for the City. In Advisory Opinion Number 98-11, the Board noted that receiving lagged

paychecks or payment for unused leave does not alter or extend the date of termination from City

service. The Board also stated that public servants who are “on leave” from their positions—

even unpaid leave—are still public servants, subject to all of the restrictions on current public

servants contained in Chapter 68. In 2013, for example, the Board fined a former Elevator

Mechanic Helper for the New York City Housing Authority (“NYCHA”) $1,000 who, while on

leave from NYCHA, worked as an Elevator Mechanic Helper for a firm having business dealings

with NYCHA.

In the context of the Charter’s post-employment restrictions, “‘[a]ppear’ means to make

any communication, for compensation, other than those involving ministerial matters.”

This

includes attending meetings, making telephone calls, sending e-mails, writing letters, and

engaging in similar types of activities. The Board accordingly fined a former Administrative

Engineer at the New York City Department of Buildings (“DOB”) $2,000 for attending, during

the first year after he left DOB and on behalf of his private employer, meetings at the Lower

Manhattan Construction Command Center at which employees of DOB were present. The

former Administrative Engineer admitted that his conduct violated the prohibition against

appearing before one’s former City agency within one year of terminating employment with the

agency.

Similarly, in 2015, the Board fined a former First Deputy Press Secretary for the New

York City Mayor’s Office $2,000 for communicating with her former City agency on two

occasions on behalf of her new private sector employer—once by attending a meeting hosted by

a Deputy Mayor at City Hall—within her first year of leaving City service.

In 2012, the Board

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fined a former attorney for the New York City Police Department (“NYPD”) $1,000 for, during

his first post-employment year, writing a letter on behalf of a client of his private law practice to

the New York City Office of Payroll Administration, which letter he copied and sent to the

NYPD Payroll Section, seeking correction of alleged excessive payroll deductions. As the

former employee admitted, by sending this letter to NYPD during his first post-employment

year, he violated the one-year appearance ban.

In Advisory Opinion Number 2008-1, the Board stated that the ban on appearances

before the “agency served” by the former public servant prohibits communications, other than on

ministerial matters, with any officer or employee of the City agency in question, where that

officer or employee is acting in his or her official capacity as a representative of that agency.

Ministerial matter “means an administrative act, including the issuance of a license, permit or

other permission by the city, which is carried out in a prescribed manner and which does not

involve substantial personal discretion.”

The Board in 2009 thus fined a former high-level

public servant, one of whose agencies served was the Hudson Yards Development Corporation

(“HYDC”), for making a presentation during his first post-employment year to a panel on which

the HYDC President sat in her official capacity.

In contrast, as the Board stated in Advisory

Opinion Number 2009-5, where the public servant in question is approached in his or her

personal capacity, communicating with that current public servant in the former public servant’s

first post-employment year will not implicate the one-year ban. For example, an attorney who

has left City service may in her first post-employment year contact a former colleague to seek the

colleague’s personal legal business and may likewise approach a former colleague to seek his or

her endorsement of a candidate for elective office, since such political endorsements are, the

Board observed, personal rather than official acts. Purely social interactions, such as meeting

for lunch, or other non-work-related contact with former colleagues are permissible both because

they are communications with one’s former colleagues in their personal, not their official,

capacities and because they are not compensated communications. If, however, the conversation

on such an occasion turns to business that the former employee’s new private sector employer

has with his or her former City agency, a violation of the one-year appearance ban may well

occur.

In order to enforce these provisions, the Board can and, as noted above, does impose

fines against former public servants for actions taken after leaving City service. In 2007 the

Board fined a former New York City Department of Transportation (“DOT”) employee $2,000

for appearing regularly before DOT during his first post-employment year on behalf of his

private employer to coordinate which streets should be milled and resurfaced.

In 2008 the

Board and the New York City Department of Education (“DOE”) concluded three-way

settlements with five former DOE technology staff developers in which three agreed to fines of

$1,500, one a fine of $2,500, and the fifth a fine of $5,000. These employees admitted that,

when they left the DOE, they formed and jointly owned a firm to market and sell products to the

DOE and that, during their first post-employment year, they organized a conference for DOE

employees at which they made technology presentations.

Also in 2008 the Board fined the

former Director of the Mayor’s Office of State Legislative Affairs $12,000 for making

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compensated appearances, in the form of numerous e-mails, to various public servants in the

Mayor’s Office concerning a number of items of pending or prospective legislation of interest to

several clients of his law firm, at which he was a partner.

In 2016, the Board entered into a

joint disposition with DOT and a former DOT Executive Deputy Agency Chief Contracting

Officer (“ACCO”), who paid a $5,000 fine for, within one year of leaving City service, twice

appearing before DOT on behalf of his new private-sector employer. In each of those prohibited

appearances, the former Executive Deputy ACCO contacted former DOT subordinates seeking

confidential City information.

The meaning of “agency served by such public servant,” a phrase used in Charter §

2406(d)(2), depends on the particular facts at issue. Therefore, in the case of a paid public

servant, this phrase means the agency employing the public servant. However, in the case of an

unpaid public servant, it means the agency employing the official who appointed the unpaid

public servant, with certain exceptions.

The Board, in Advisory Opinion Number 93-11, made it clear that when a former public

servant was employed by a unit or department within an agency, the “agency served by such

former public servant” is the entire agency, and not just the unit in which the former public

servant was employed. Although the former public servant worked only for an agency’s

Enforcement Unit, he served the entire agency, including the agency’s Hearings Unit, and it

would be a violation of Chapter 68 for the former public servant to appear before the agency’s

Hearing Unit less than one year after the termination of his service at the agency.

In Advisory Opinion Number 2007-1, the Board noted that, while for former members of

the Community Education Councils of the DOE their “agency served” is the entire DOE, it

would, in light of their limited powers, evaluate applications for waivers of the one-year

appearance ban as if their agency served was the DOE district they served and would therefore

typically grant such waivers on the condition that former members not appear during that year

before that district.

Advisory Opinion Number 93-11 also made clear that the one-year ban is personal to the

former public servant himself or herself and for that reason does not prohibit appearances by

other employees of the former public servant’s new firm: “With respect to other attorneys at the

former public servant’s law firm, it is the opinion of the Board that it would not be a violation of

Chapter 68 for such other attorneys to appear before the Agency within one year after the former

public servant’s termination from City service, and to use the firm’s stationery which lists the

former public servant’s name on the letterhead.”

When a former public servant serves more than one agency within the year prior to

terminating his or her service with the City, Board Rules § 1-07 prohibits the former public

servant from “appear[ing] before each such City agency for a period of one year after the

termination of service from each such agency.”

This rule requires calculation of the one-year

ban for each such agency served by the former public servant, resulting in two or more different

dates on which the one-year ban expires. For example, in Advisory Opinion Number 93-30, a

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former public servant worked at a City agency (“Agency A”) from September 19, 1991, until

December 30, 1992, and a different City agency (“Agency B”) from December 31, 1992, to

September 3, 1993, at which time the public servant left his City position for private sector

employment. The former public servant sought Board permission to appear before Agency A

within one year of his termination of City employment. The Board, applying Board Rules § 1-

07, determined that the one-year ban on the public servant appearing before Agency A would not

expire before December 30, 1993, one year after the public servant left that agency. Because the

Board did not grant the former public servant a waiver, he could not appear before Agency A

until after that date. Had the former public servant in this case sought to appear before Agency

B, under Board Rules § 1-07, he could not have done so until the one-year ban with respect to

that agency expired on September 3, 1994.

The Charter carves out an exception to the one-year ban for certain appearances by a

former public servant in adjudicative proceedings. Specifically, the “litigation exception” of

Charter § 2604(d)(2) permits a former public servant’s communications with the agency

formerly served by the former public servant, provided that: (1) the communications are

incidental to an otherwise permitted appearance in an adjudicative proceeding before another

agency or body, or a court; (2) the proceeding was not pending in the agency served during the

period of the former public servant’s service with that agency; and (3) the appearance does not

involve the lifetime particular matter ban, discussed below in Section D. In 2017, the Board

fined a former DOE attorney $1,750 for communicating with his former DOE supervisor on

three occasions during his first post-employment year about a special education case being

handled by his new law firm. Because the case had been pending at DOE while he was a DOE

employee, he failed to satisfy all the conditions of the “litigation exception.”

While this exception applies most often to lawyers, the Board, in Advisory Opinion

Number 96-6, determined that a former public servant who was not an attorney may, within one

year after leaving City service, serve as a paid expert witness in cases involving his former

agency that are before other adjudicative bodies or courts and incidental thereto communicate

with his former agency, provided that (1) the cases were not pending in the agency while he was

employed there; and (2) he never serves as a paid expert witness concerning any particular

matter on which he had worked personally and substantially during his tenure with the agency.

D. Lifetime Particular Matter Bar

Former public servants are permanently barred from appearing, whether in a paid or

unpaid capacity, “before the city, or receiv[ing] compensation for any services rendered, in

relation to any particular matter involving the same party or parties with respect to which

particular matter such person had participated personally and substantially as a public servant

through decision, approval, recommendation, investigation or other similar activities.”

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The lifetime bar differs from the one-year ban not only because it is a permanent

prohibition but also because it involves work on a “particular matter.” Thus, the lifetime bar

provides that a former public servant may not appear before any City agency on the particular

matter involving the same party or parties that he or she worked on personally and substantially

while a public servant, whether or not the former public servant receives any compensation for

the appearance. Further, a former public servant may not receive compensation for any services

rendered in relation to the particular matter he or she worked on personally and substantially

while a public servant, even if the services do not involve an appearance before the City.

In view of the permanent nature of this prohibition, a public servant’s degree of

involvement with a particular matter must have been personal and substantial in order for this

provision to apply. Activities that make only insignificant contributions to the final disposition

of a matter, “such as typing a contract or performing other ministerial matters, do not constitute a

sufficient level of involvement for the lifetime ban to apply.”

The Board has had several opportunities to consider the question of what constitutes

“personal and substantial” involvement in a particular matter. In Advisory Opinion Number 96-

7, the Board determined that a former public servant who was the hearing officer in the early

stages of a matter may not become involved as private counsel on the same matter. As a hearing

officer, her involvement had been personal and substantial in that she had conducted pretrial

conferences, scheduled the case for trial, granted various adjournment requests, and performed

other tasks that could have affected the outcome of the proceeding. In addition, the possibility

that as a hearing officer she had access to confidential information concerning the party that

would now be her adversary could create the appearance of impropriety.

Because of such factors as the passage of time or the volume of matters that a former

public servant had handled while in City service, a former public servant might not recall

participating as a public servant in a given matter. In 2010, the Board addressed this possibility

in a public warning letter to a former Commanding Officer at the NYPD Office of Labor

Relations who, after retiring from the NYPD, was retained as an expert witness in a lawsuit

against the City, in which lawsuit he had personally and substantially participated while at the

NYPD. While the former Commanding Officer represented to the Board that he did not recall

participating in the matter while at the NYPD, the public letter made clear that public servants

have a duty to conduct a reasonable inquiry to determine whether they have ever personally and

substantially participated in a particular matter on which they are considering working after

leaving City service. With respect to the former Commanding Officer, that reasonable inquiry

required that he ask the NYPD and the New York City Law Department Labor and Employment

Division, which participated in the City’s defense, whether he had participated in the lawsuit in

any way.

In 1998, the Board fined a former Resident Engineer of the New York City Department of

Citywide Administrative Services $3,000 for consulting for pay for a private firm on the same City

project on which he had worked personally and substantially as a City employee.

As a public

servant, the Resident Engineer had been in charge of the project and approved contract changes,

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signed documents, and approved payment requests, change orders, and estimates involving the

private firm for which he worked as a consultant after leaving City service. The Board reached a

similar result in 2005 when it fined a former Agency Chief Contracting Officer for the New York

City Human Resources Administration (“HRA”) $3,000 for working on behalf of his new private

employer on issues related to two contracts in each stage of whose award he had been involved

while at HRA, as well as for calling a high-ranking HRA official within one year of leaving

HRA to discuss one of these contracts.

The former public servant’s involvement in those

contracts while he was a City employee included signing documents related to the

recommendation for the award of the contracts and signing of the contracts on behalf of HRA.

In 2009 the Board fined a former Director of Environmental Review and Watershed

Management at the New York City Department of Environmental Protection (“DEP”) $2,000 for

violating the “lifetime particular matter ban.” The former Director admitted that, while a DEP

employee, he was in charge of a DEP program into which a specific development was seeking

admission and that he met with the development’s representatives on multiple occasions to

discuss the requirements for participation in the program. The former Director then left DEP and

took a job in the private sector where he worked on part of the development’s application for the

same DEP program in which he had, as a DEP employee, participated personally and substantially

through decision, approval, recommendation, and other similar activities.

On the other hand, the Board, in Advisory Opinion Number 92-38, determined that a

former public servant could work on a contract between her present employer, a private

consulting firm, and a subsidiary of a state public authority, for a demand study for certain

services required by persons with disabilities (the “State Study”). The Board reasoned that,

although the former public servant, in her capacity as a City employee, had attended a

preliminary meeting where the State Study was discussed, her involvement in the project had not

been substantial. The Board determined that her participation in the State Study, and her receipt

of compensation for work performed on the Study for the private consulting firm, would not

violate Charter § 2604(d)(4).

Under certain circumstances the definition of “particular matter” requires further

clarification. For example, in Advisory Opinion Number 95-23, the Board determined that with

respect to bills before the State Legislature, the “particular matter” would be limited to a

particular bill that was introduced, or re-introduced, during a particular legislative session. If the

bill were introduced in a subsequent legislative session, with whatever amendments or

modifications it might include, this new bill would be considered a different matter.

In Advisory Opinion Number 96-6, the Board determined that specifications drafted by a

public servant and used by his former agency for purchasing vehicles did not constitute a

particular matter on which the former public servant worked. Therefore, the public servant could

serve as a paid expert witness in cases in which he would be asked to testify about the

specifications, subject to the other post-employment restrictions. The Board reasoned that, since

the guidelines were general and were not drafted in connection with any specific party or parties,

they were not a particular matter. The Board noted, however, if the former public servant had

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direct involvement with specific parties in such cases, while he was a public servant, he would

not have been permitted to serve as a paid expert witness in cases involving those specific

parties.

For some public servants, the definition of “particular matter” requires greater specificity

than is found in Charter § 2601(17). For this reason, a special rule, Board Rules § 1-12, was

devised to define “particular matter” as it applies to public servants involved in real estate tax

assessment. Former public servants who, as public servants, were involved in certain activities

relating to real estate tax assessments may not appear, whether paid or unpaid, before the City, or

receive compensation for any services rendered, in relation to a proceeding involving a tax year

or the immediately subsequent tax year for a given parcel of property with respect to which the

public servant engaged in the activity. The Rule covers those former public servants who, as

public servants, served on or were employed by the Tax Commission, the Department of

Finance, the Comptroller's Office, or the Law Department. The activities that trigger the ban on

appearing before the City or receiving compensation for services rendered are: (1) the hearing of

an application for correction of assessment for taxation (“protest”) from any real estate tax

assessment; (2) the review of any proposal to settle or offer to reduce the assessment with respect

to any such protest; or (3) participation personally and substantially in (i) the preparation or

review of an appraisal, (ii) the review, analysis, or recommendation of a real estate tax

assessment, or (iii) the conducting of a tax certiorari proceeding, which shall include but not be

limited to its negotiation, settlement, trial, or review.

E. Ministerial Matters

While the Charter imposes certain limitations on post-employment activities, it makes

clear that none of the provisions contained in Charter § 2604(d) “shall prohibit a former public

servant from being associated with or having a position in a firm which appears before a city

agency or from acting in a ministerial matter regarding business dealings with the city.”

Accordingly, the Board ruled in Advisory Opinion Number 91-19 that a former City employee

may make a Freedom of Information Law (“FOIL”) request on behalf of a private entity to his

former agency within a year after the termination of his City service, inasmuch as the request

constitutes a ministerial matter. However, the former City employee must not bypass FOIL

procedures at his former agency by going directly to the party having the records he seeks or

otherwise request or receive treatment that is in any way different from anyone else who makes a

FOIL request to the agency.

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F. Working for a Firm that Does Business with the Former Public Servant's Former

City Agency

It is important to note that nothing in the post-employment restrictions of Chapter 68

prohibits a former public servant from accepting a position (1) with a firm with which the former

public servant had prior contact as a public servant; (2) with a firm that has business dealings

with the former public servant’s former City agency; or even (3) with a firm that is involved in a

particular matter with which the former public servant was previously involved, provided that in

all such instances the former public servant acts in accordance with the restrictions discussed in

this chapter.

G. Government-to-Government Exception

The Charter expressly exempts negotiations for positions with other governmental

agencies from the post-employment restrictions. Charter § 2604(d)(6) provides that the

“prohibitions on negotiating for and having certain positions after leaving city service, shall not

apply to positions with or representation on behalf of any local, state or federal agency.”

In Advisory Opinion Number 99-3, the Board determined that the government-to-

government exception applied to a public servant’s communications with his former City agency

in his role as a consultant to the State of New York during the first year after his departure from

City service. The public servant wanted to resign from his agency to take a position with a

private firm. As part of his duties at the firm, the public servant would manage a project on

which the firm worked pursuant to a contract with a State agency and that would entail

communication with his former City agency. The Board, relying on the “representation on

behalf of any local, state or federal agency” language in Charter § 2604(d)(6), determined that

the public servant would be acting as a consultant to and a representative of the State in his

communications with his former City agency and thus those communications were not prohibited

by Charter § 2604(d)(2).

1. Hiring Former Agency Employees as Consultants

In certain situations, a City agency may contract with former employees to perform

identified tasks. The Board, in Advisory Opinion Number 93-12, analyzed this type of situation

under the provisions of Charter § 2604(d)(6) and permitted a City agency to contract, under

certain circumstances, with former employees as consultants. Such a consulting arrangement

allows the former employee to appear before his or her former City agency before the expiration

of the one-year appearance ban and to work on particular matters. This consultancy would not

violate the Charter, provided that the consulting relationship was not intended to circumvent

other prohibitions contained in Chapter 68 and would not otherwise result in a conflict of interest

under Chapter 68. The consulting arrangement must be for legitimate City reasons and may not

be offered as a reward to a favored co-worker, to engage a former employee at a higher income

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level, to avoid budget limitations, or to otherwise engage in an actual or potential conflict of

interest. In the case before the Board in Opinion Number 93-12, the City agency could enter into

a consulting contract with the former public servant within one year of his resignation because of

his unique expertise on a critical issue facing City government and because there was no

evidence that the consulting relationship was intended to circumvent the prohibitions contained

in Chapter 68.

A former public servant, however, may not perform services for his or her former City

agency pursuant to a contract between the former public servant’s agency and his or her current

private employer. Such services may be performed only pursuant to a personal contract between

the former public servant and his or her former City agency. In Advisory Opinion Number 95-1,

the Board refused to grant a waiver of the post-employment restrictions to a former public

servant who sought permission to have his former agency retain his current employer, a private

consulting firm. The head of the City agency wanted to obtain the former public servant’s

personal services because of his unique qualifications and because the agency was experiencing

staffing problems, but the former public servant was now employed by the private firm. The

Board, in denying the request for a waiver, reasoned that, if it granted the waiver, the private

firm would benefit by obtaining a contract with the City because of the former public servant’s

experience and relationship with the City and the firm would have a competitive advantage over

similarly situated companies only because it had retained the former public servant. The Board

noted that the former public servant could contract directly with the agency in his personal

capacity for his services.

2. Treating Quasi-Governmental Entities as Arms of Government

In certain situations, a public servant’s prospective private employer may, for purposes of

Chapter 68, be considered an arm of government. If the Board determines that the prospective

employer is an arm of government, then, pursuant to Charter § 2604(d)(6), the public servant

may appear before his or her former City agency before the expiration of the one-year

appearance ban and work on particular matters. The Board has not adopted a blanket rule

regarding its treatment of quasi-governmental entities as arms of government. Instead, it

considers these entities on a case-by-case basis.

The Board has had several opportunities to determine whether a prospective employer

was an arm of government. For example, in Advisory Opinion Number 94-7, the Board held that

a local development corporation might in some circumstances be considered an arm of

government for purposes of Chapter 68. To make this determination, the Board considered: (1)

the manner in which the corporation was formed; (2) the degree to which the corporation is

controlled by government officials or government agencies; and (3) the purpose of the

corporation. Similar treatment is found in Advisory Opinion Number 93-13.

The Board applied these factors in concluding in Advisory Opinion Number 94-21 that a

business improvement district (“BID”) may, under certain circumstances, be considered an arm

of government under Charter § 2604(d)(6). The Board determined in Advisory Opinion Number

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97-1 that the Brooklyn Public Library is an arm of government for purposes of Charter §

2604(d)(6).

H. Waivers

A public servant or former public servant may hold or negotiate for a position otherwise

prohibited by the post-employment restrictions where the holding of the position would not be in

conflict with the purposes and interests of the City. However, to do so, the public servant must

obtain written approval by the head of the agency or agencies involved, and the Board must

determine that the position involves no conflict with the purposes and interests of the City.

Under Charter § 2604(e), such findings shall be in writing and made public by the Board.

However, the Board has consistently stated that such waivers will be granted sparingly and only

when justified by compelling circumstances in a particular case. Thus, in Advisory Opinion

Number 93-30, the Board denied a public servant’s request for a waiver where no compelling

circumstances justified the appearance before his former agency within one year of termination

of his City service.

In determining whether to issue a waiver of the post-employment restrictions, the Board

considers several factors, including, but not limited to: (1) the relationship of the City to the

public servant's prospective employer; (2) the benefits to the City (as opposed to the public

servant) if the waiver were to be granted; and (3) the likelihood of harm to other organizations or

companies similar to, or in competition with, the public servant's prospective employer if the

waiver were to be granted. In Advisory Opinion Number 94-15, the Board granted a former

public servant’s request for a waiver after reviewing these factors and determining that

government decision-making would not be compromised by the waiver.

In addition to these factors, the Board considers the public servant’s particular skills and

qualifications that make him or her uniquely suited for the position with the prospective

employer. For example, in Advisory Opinion Number 91-8, the Board granted a waiver of the

one-year appearance ban in the case of a former public servant who was offered a position with a

firm that had a contract to manage certain sites operated by his former agency, where the agency

head represented to the Board that the availability of the former public servant’s expertise as an

employee of the firm would materially help the agency's efforts to meet certain court-imposed

deadlines.

In Advisory Opinion Number 96-1, the Board granted a waiver of the one-year

appearance ban and the lifetime bar to a former public servant who had accepted employment

with the same municipal union for which he had worked full-time on release time with pay while

in City service. The Board also determined that the “agency served” by the public servant for

purposes of Chapter 68 was, in reality, the New York City Office of Labor Relations (“OLR”),

not the agency from which he was on release time. Public servants on release time whose

situations are similar to that of the former public servant in this case and who wish a waiver of

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the post-employment restrictions must (1) apply to the Board for that waiver and (2) obtain the

written approval of the head of OLR in support of the waiver request. The Board will consider

such waiver requests on a case-by-case basis.

The Board has issued waivers of the one-year appearance ban to retired DOE employees

to provide special education services as independent providers. Generally, such waivers are not

issued unless there is a shortage of individuals qualified to provide the special education

services.

In Advisory Opinion Number 2000-2, the Board recognized that City agencies developed

partnerships with not-for-profit organizations that perform services deemed to be in the City’s

interest, so that, in considering whether to waive the post-employment restrictions for a City

employee going to work at such an organization, the Board will not require that its historic

criteria for evaluating such requests all be satisfied. Rather, depending on the specific

circumstances of a case, the Board may grant a waiver when one or more of these factors are

particularly compelling.

In Advisory Opinion Number 2008-4, the Board reviewed its experience with

applications for post-employment waivers in the wake of Opinion Number 2000-2 and noted that

not all applications on behalf of City employees leaving City service to work for worthy not-for-

profit organizations fall within the more permissive “public-private partnership” standard of that

Opinion. Instead, when an organization’s relationship with the City is more accurately described

as that of a compensated provider of goods or services—that is, as a vendor—the application is

judged under the historic, more stringent “exigent circumstances” standard. The Board has

denied waiver applications as failing to meet this historic standard when a primary argument

made by the former public servant is that it would be extremely difficult to perform the duties of

his or her new position without a waiver of the post-employment restrictions, a hardship that the

Board has viewed as self-created and thus an unconvincing attempt to bootstrap oneself into a

favorable outcome. On the other hand, when the prospective employer is a City-affiliated not-

for-profit, or at least one that contributes private resources to the City in a joint venture with a

City agency, the entity will be more likely deemed a “partner,” and the application for a post-

employment waiver will accordingly be evaluated under the less stringent standard of Opinion

Number 2000-2.

In Advisory Opinion Number 2012-2, the Board noted that, in its experience, potential

employers of departing City employees were more likely to be judged vendors to, rather than

partners of, the City, so that the historic “exigent circumstances” test was the more likely test to

be applied to applications for post-employment waivers. Furthermore, because under that

standard waivers would be granted sparingly, the Board cautioned that departing public servants

would be well advised to seek a waiver before leaving City service to accept a private sector job

in which otherwise prohibited conduct is critical to the performance of the position’s duties.

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I. Confidential Information

Section 2604(d)(5) of the Charter prohibits a former public servant from using for private

advantage or disclosing any confidential information gained from public service that is not

otherwise made available to the public. The Board fined the former General Counsel to the New

York City Taxi and Limousine Commission (“TLC”) $2,000 for disclosing, after he left City

service, confidential information he gained while at TLC. The former General Counsel admitted

that, after he left City service, he prepared and executed an affidavit in which he revealed that he

had expressed disagreement with and to TLC’s First Deputy Commissioner concerning

application of the rules regarding alternative fuel medallions that were bid on at a TLC auction, a

disagreement that was not public at the time the affidavit was prepared.

To encourage former

public servants to reveal malfeasance or waste in City government, however, the Charter does

not “prohibit any public servant from disclosing any information concerning conduct which the

public servant knows or reasonably believes to involve waste, inefficiency, corruption, criminal

activity or conflict of interest.”

J. Agency Advice to Departing Employees

To ensure that public servants are aware of their obligations regarding post-employment

activities, agencies should take certain steps with respect to their employees. First, prior to

becoming a public servant, candidates for City employment should be advised of the post-

employment restrictions. In fact, it may be appropriate to discuss this topic during the initial job

interview. Second, agencies should periodically remind their employees of the post-employment

restrictions, whether by posting the applicable Charter provisions on agency bulletin boards, by

e-mail notifications, or by some other method. Third, the Board recommends that each departing

employee’s post-employment plans be reviewed by an agency attorney, or by someone in Human

Resources who is versed in the conflicts of interest law, to ensure that the public servant is

adhering to the post-employment prohibitions and to encourage the public servant to request an

opinion from the Board if he or she has specific questions concerning the proposed job offer.

It is imperative for the public servant to raise post-employment issues with the Board

before negotiating for or accepting a position with a prospective private employer so that the

Board can properly evaluate the request and provide guidance in a timely manner. Supervisors

in each agency should be advised that employees may request the reassignment of work to other

staff so that the employees may submit a resume to, interview with, or otherwise solicit,

negotiate for, or accept a position from a company with which they are involved in their City job.

Public servants have a duty to comply with the Charter’s post-employment provisions

and may be sanctioned for their failure to do so. Charter § 2606 provides that if the Board

determines that a violation of the Charter has occurred, the Board, after consultation with the

appropriate agency head, may impose fines of up to $25,000 per violation and may order

payment to the City of any gain or benefit obtained by the violator as a result of his or her

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violation. A violator of the conflicts of interest law may also be subject to criminal prosecution

by a District Attorney’s Office.

It might be useful for a public servant to consider the following questions when leaving

City employment:

1. Have you reviewed the post-employment restrictions in Charter § 2604(d)?

2. Does your new employer conduct business with your City agency, appear

before your City agency, or intend to conduct business with your City agency?

If the answer to any of these questions is yes, are you aware that you are

prohibited in your private sector job from appearing before your former

agency for one year?

3. Does your new position involve working on any particular matter, involving

the same party or parties, on which you worked personally and substantially

as a public servant, either through decision, approval, recommendation,

investigation, or other similar activities? If yes, are you aware that:

a. You are prohibited from appearing (with or without pay) before any

City agency in relation to that particular matter; and

b. You are prohibited from receiving compensation (with or without an

appearance before the City) for any services rendered in relation to

that particular matter?

A soon-to-be-former public servant should carefully consider these questions to determine

whether he or she is in danger of violating the Charter’s post-employment restrictions.

Charter § 2601(19).

Volume II, REPORT OF THE NEW YORK CITY CHARTER REVISION COMMISSION,

DECEMBER 1986 – NOVEMBER 1988, at 152-153.

COIB v. Dempsey, COIB Case No. 2016-161 (2017).

COIB v. Scharff, COIB Case No. 2016-599 (2017).

COIB v. Giwa, COIB Case No. 2013-306 (2013).

Charter § 2604(b)(2); Rules of the Conflicts of Interest Board (“Board Rules”), Vol. 12, Title

53, RULES OF THE CITY OF NEW YORK §§ 1-13(a) and (b). See also Charter § 2604(b)(3).

COIB v. Maracic, COIB Case No. 2006-756 (2008).

COIB v. Hagler, COIB Case No. 2013-866 (Order Dec. 2, 2015), adopting OATH Index. No.

581/15 (June 17, 2015).

COIB v. Romeo, COIB Case No. 2012-808 (2013).

Charter § 2601(4).

COIB v. Reid, COIB Case No. 2008-547 (2010).

COIB v. Wood, COIB Case No. 2014-495 (2015).

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COIB v. Pawar, COIB Case No. 2011-765 (2012).

Charter § 2601(15).

COIB v. Sirefman, COIB Case No. 2008-847 (2009).

COIB v. McHugh, COIB Case No. 2004-712 (2007).

COIB v. 5 Former DOE Employees, COIB Case Nos. 2001-566 through 2001-566d (2008).

COIB v. Piscitelli, COIB Case No. 2007-745 (2009).

COIB v. Syed, COIB Case No. 2015-740 (2016).

Charter § 2601(3).

Advisory Opinion Number 93-11 at 5.

Board Rules § 1-07.

COIB v. Qamer, COIB Case No. 2017-112 (2017).

Charter § 2604(d)(4).

Volume II, REPORT OF THE NEW YORK CITY CHARTER REVISION COMMISSION,

DECEMBER 1986 – NOVEMBER 1988, at 183.

COIB v. McCabe, COIB Case No. 2008-129 (2010).

COIB v. Fodera, COIB Case No. 1996-404 (1998).

COIB v. Bonamarte, COIB Case No. 2002-782 (2005).

COIB v. Benson, COIB Case No. 2007-297 (2009).

Charter § 2604(d)(7).

The Board drew a distinction between this case and Advisory Opinion Numbers 93-12 and 95-

1, discussed in Section G of this chapter. In those opinions, the Board permitted former public

servants to consult for their former agencies personally, but not through their private employers.

The Board declined to read the “personal contracting” requirement into the “representation”

language found in Charter § 2604(d)(6).

COIB v. Mazer, COIB Case No. 2005-467 (2007).

Charter § 2604(d)(5).

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