JCOPE Issues First Advisory Opinion

The Joint Commission on Public Ethics (JCOPE) recently posted to its web site its first formal advisory opinion.

AO 12-01 was issued in response to a request by a former hearing officer at the state’s Office of Temporary Disability Assistance (OTDA).  He sought permission to represent persons before OTDA, on a pro bono basis, before his two year bar has run.

The Commissioners appear to have had an easy time with this inquiry:

First, does Mr. Doe’s proposed activity constitute the type of appearance or practice before his former agency that the two-year bar prohibits? Second, does pro bono service of the type Mr. Doe seeks to provide come within the ambit of the two-year bar contained in Public Officers Law §73(8)(a)(i)?

The Commission finds that both questions are answered in the affirmative.

It is interesting to note that the person who sought the advisory opinion first requested informal guidance from JCOPE’s staff.  Apparently unhappy with the staff’s informal guidance, he sought to plead his case to the Commissioners.  This was not successful.

The Commissioners did, however, provide him with some direction on how to accomplish his goal, at least in part, without violating the two-year bar:

As noted above, the appearance/practice clause of the statute prohibits Mr. Doe from appearing or practicing before OTDA in a fair hearing, whether for compensation or on a pro bono basis, for two years after his separation from state service. Under the backroom services clause of the statute, however, Mr. Doe may provide certain services, free of charge, to individuals participating in OTDA fair hearings. These pro bono backroom services are activities that do not rise to the level of appearing or practicing before OTDA. Such activities may include providing general information, guidance and strategy on the fair hearing process as well as assisting in the preparation of documents that may be submitted by the client or by another attorney. In this way, Mr. Doe would be able to utilize his expertise as a former OTDA hearing officer, serve those in need of legal advice, and remain compliant with the law’s post-employment restrictions.