Opn. No.

Check Treatment

Hon. Richard A. Berman Director Department of Health Office of Health Systems Management

This is in response to your request for my opinion on the applicability of Public Officers Law, § 73(7) to former employees of the Department of Health who now seek to represent organizations regulated by the Department in matters of substance before it. Two questions are posed: (1) whether and in what particular circumstances former employees may appear before the agency; and (2) whether such former employees may deal with persons they formerly supervised.

Your request contains the following statements as to the relevant facts: the former Associate Director of the Division of Health Facility Standards, the former Director of the Bureau of Long Term Care Services, and the former Assistant Director of the Bureau of Appeals, worked for the Department of Health until November 18, 1977, November 11, 1978 and November 9, 1977, respectively. They now seek to meet with Department personnel on two matters — an outstanding rate appeal for a hospital for the years 1977 and 1978 and a reimbursement and program issue concerning a nursing home for the years 1976 to the present. Your letter does not say whether any of such employees were directly concerned with and personally participated in the pending hospital or nursing home matters while they were employed by the Department.

The Department of Health is a "state agency" under the definitions contained in Public Officers Law, § 73(1). Therefore, under section 73(7) of that law, former employees or officers of the Department are prohibited, for two years after termination of their employment, from either appearing or receiving compensation for services on behalf of anyone in relation to any case, proceeding, or application with respect to which they were directly concerned and in which they personally participated during the period of their employment. Any person who knowingly or intentionally violates this prohibition may be guilty of a misdemeanor (Public Officers Law, § 73(10).

Thus, if any of the above employees were directly concerned with and personally participated in either the hospital or the nursing home matter while employed by the Department, he cannot now appear or receive compensation for services rendered on behalf of anyone with respect to it. Aside from section 73(7), there is no prohibition against dealings by former employees with persons they formerly supervised.

Consideration should also be given to the final provision of section 73(7) which authorizes the Department of Health to adopt rules concerning practice before it by former officers or employees which are more restrictive than the requirements of the subdivision itself in view of the apparent frequency with which former members of your supervising staff return to deal with their subordinates.