McCulloch v. New York State Ethics Commission

285 A.D.2d 236, 728 N.Y.S.2d 850, 2001 N.Y. App. Div. LEXIS 7943
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 9, 2001
StatusPublished
Cited by9 cases

This text of 285 A.D.2d 236 (McCulloch v. New York State Ethics Commission) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCulloch v. New York State Ethics Commission, 285 A.D.2d 236, 728 N.Y.S.2d 850, 2001 N.Y. App. Div. LEXIS 7943 (N.Y. Ct. App. 2001).

Opinion

OPINION OF THE COURT

Lahtinen, J.

This appeal presents an issue of first impression regarding the scope of Public Officers Law § 73 (8) (a) (ii) — whether the statute’s lifetime prohibition on a former State agency employee’s ability to render services that relate to any matter which the individual was directly concerned with and personally participated in while employed by the State is limited to rendering services before an agency or extends to rendering compensated services that do not require the individual to actually appear or practice before an agency.

Petitioner is a former senior planner for the Tug Hill Commission (hereinafter the Commission), an executive agency devoted to regional land-use control (see, Executive Law art 37). In that capacity, he prepared an application for a Federal community development block grant on behalf of the Town of Forestport, Oneida County, in 1992, which was subsequently approved by the Federal government and administered by the Commission pursuant to a contract with the Town. Petitioner administered the grant for the Commission until he resigned on May 15, 1994. At that time, 60% of the Forestport project had been completed and $4,500 of the grant remained to complete administrative matters. On June 8, 1994, the Town terminated its contract with the Commission and hired petitioner, through his private company, to administer the remainder of the grant at a cost of $4,500. Petitioner administered the grant until the project was completed in 1995 and was paid accordingly.

In January 1999, respondent issued a notice of reasonable cause alleging that petitioner violated Public Officers Law § 73 (8) (a) (ii) by rendering compensated services in relation to the Forestport grant because it was a transaction that he was directly concerned with and personally participated in while [238]*238employed as a senior planner by the Commission. Petitioner subsequently moved to dismiss the notice of reasonable cause, arguing, inter alia, that it failed to sufficiently allege a violation of Public Officers Law § 73 (8) (a) (ii) because he did not appear, practice, communicate or otherwise render services before the Commission while administering the grant after he resigned. Respondent cross-moved for summary judgment, arguing, inter alia, that the statute prohibits rendering any services, on behalf of any individual or entity, which relate to a matter that a former employee was directly concerned with and personally participated in during State service (1) before the former employing agency or (2) in any setting for compensation. A Hearing Officer thereafter issued a recommendation which concluded that respondent’s interpretation was correct, found that petitioner violated the statute and recommended a penalty of $4,500. The Hearing Officer’s legal and factual recommendations were subsequently confirmed by respondent, but the penalty was reduced to $2,000.

Petitioner then commenced this CPLR article 78 proceeding seeking, inter alia, to annul respondent’s determination. Supreme Court concluded that respondent’s interpretation of the statute was not entitled to deference and held that petitioner did not violate Public Officers Law § 73 (8) (a) (ii) because he did not appear or practice before any State agency while administering the Forestport grant after he resigned from the Commission (184 Misc 2d 546, 550). Respondent appeals.

Initially, we agree with Supreme Court’s conclusion that respondent’s interpretation of Public Officers Law § 73 (8) (a) (ii) is not entitled to deference. This appeal presents an issue of pure statutory construction “dependent only on accurate apprehension of legislative intent” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459). Accordingly, “there is little basis to rely on any special competence or expertise of the administrative agency” (id., at 459) and we “are ‘free to ascertain the proper interpretation from the statutory language and legislative intent’ ” (Seittelman v Sabol, 91 NY2d 618, 625, quoting Matter of Gruber [New York City Dept. of Personnel — Sweeney], 89 NY2d 225, 231-232).

We begin our analysis of the more pressing issue in this case by reiterating that the “primary consideration * * * in the construction of statutes is to ascertain and give effect to the intention of the Legislature” (McKinney’s Cons Laws of NY, Book 1, Statutes § 92 [a]; see, Temple Marble & Tile v Union [239]*239Carbide Marble Care, 87 NY2d 574, 580). To fulfill this mandate, our first task is to read the statute literally (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 92 [b]) and determine whether the language of the statute is unambiguous and clearly expresses the Legislature’s intent (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 76; Matter of Sutka v Conners, 73 NY2d 395, 403). If so, we must presume that the “intent is reflected in the words chosen by the Legislature and the plain meaning they express” (Temple Marble & Tile v Union Carbide Marble Care, supra, at 580; see, McKinney’s Cons Laws of NY, Book 1, Statutes § 94).

Public Officers Law § 73 (8) (a) (ii) provides as follows:

“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” (emphasis supplied).

Notably, we previously explained that subparagraph (ii) “bar[s] permanently former State officers and employees from rendering any services before any State agency or receiving compensation for any services in any matter in which they were personally involved during State service” (Forti v New York State Ethics Commn., 147 AD2d 269, 272, affd 75 NY2d 596).

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Bluebook (online)
285 A.D.2d 236, 728 N.Y.S.2d 850, 2001 N.Y. App. Div. LEXIS 7943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcculloch-v-new-york-state-ethics-commission-nyappdiv-2001.