Taking The Leap From Public Service To Private Sector

Co-authored by: Andrew Weiming Lee (Duane Morris, Singapore)

Of the myriad transitions attorneys may undertake in the course of their careers, perhaps none is as anxiety inducing as the transition from public service to private practice. In addition to new billing, origination, and client-development responsibilities, attorneys departing public sector jobs must remain alert to 'revolving door' laws that regulate the careers of all public employees post-employment, plus the ethics rules that apply to attorneys whether their government service was in a legal or non-legal capacity.

The main purpose of these restrictions is to prevent former government employees from taking advantage of information and knowledge learned during public employment for the benefit of another person or entity and to the detriment of the government. These restrictions must be carefully balanced, however, to ensure they do not pose such a barrier to departure as to discourage the best and brightest from serving the public in the first place.

New Jersey Revolving Door Laws

In New Jersey, attorneys departing public employment at any level or branch, regardless of whether their government service was as an attorney or as a public officer or employee, are governed by RPC 1.11, which addresses successive government and private employment.1

In addition, the principal source of law governing the postpublic employment activity of state executive branch employees, including attorneys employed by the state, is the New Jersey Conflicts of Interest Law (COIL), at N.J.S.A. 52:13D-12 et seq. The State Ethics Commission enforces this law and promulgates regulations and ethics codes to implement the statute, and can issue advisory opinions and informal advice to departing employees.2

In addition to the statute and regulations, a uniform ethics code, and agency-specific ethics codes, may apply as well. Pursuant to Section 23(a)(2) of the COIL, the State Ethics Commission promulgated a uniform ethics code to govern and guide the conduct of state employees in the executive branch, effective Sept. 11, 2006. The current version of this code, adopted in 2011, is the primary code of ethics for all state agencies. In addition, each state agency is required to promulgate its own code of ethics to govern and guide the conduct of state employees and special state officers and employees in the agency, which must be approved by the commission and the attorney general.3 Each code must conform to the general standards set forth in the COIL, but may be formulated with respect to the particular needs and problems of the agency to which the code is to apply and, when applicable, supplement the uniform ethics code.

The COIL imposes civil and criminal liability for violations of its post-employment restrictions. Violation of this prohibition can be punished criminally as a disorderly persons offense subject to a fine not to exceed $ 1,000 or imprisonment not to exceed six months, or both. While criminal prosecution may be rare, since the 2005 amendments were enacted civil penalties of up to $10,000 per violation can now be imposed by the commission on former employees—even after they have left state service. These enhanced civil penalties are not to be taken lightly: As recently as July 2014, the commission levied a $11,000 fine on a departed state employee for violating the law and an agency-specific ethics code.4

Finally, governors have routinely issued executive orders at the outset of their administration to impose ethics and financial disclosure obligations on their employees over and above those established by statute and regulation. No recent executive order has reached the issue of post-employment restrictions. Nevertheless, future governors may use an order to establish such restrictions, and it is always important to review the current administration's executive orders for policies, substantive obligations, and gloss that may be relevant to a specific employment scenario.

Whether the governor's constitutional authority to ensure the faithful execution of laws extends so far as to reach con duct beyond an employee's term of public employment may be debated. But there is current federal precedent for such limitations to be imposed by way of executive orders and employment contracts.5

County and Local Employees

With the notable exceptions of employees of county tax boards, county superintendents of elections and county boards of elections, which are deemed state agencies whose employees are subject to the COIL, all other county and local employees are governed by the Local Government Ethics Law (LGEL).6 The LGEL does not expressly regulate post-employment conduct, except for members of independent local authorities.7

As a result, RPC 1.11 will be the principal, and perhaps only, regulation of a departing county or local employee's post-employment activities.

The LGEL permits, but does not require, that counties and municipalities establish their own ethics boards, in which case they must promulgate a code of ethics at least as restrictive or more restrictive than the LGEL. This permits counties and towns to establish their own post-employment restrictions, if they so choose. Moreover, in certain counties and municipalities there is a growing use of executive orders to implement ethics reforms. Departing county and local employees should determine whether such codes or orders have been issued and may apply to them.

In addition, the COIL limits postemployment activities of the municipal judge and municipal attorney of a municipality where a casino is located; any member of or attorney for the planning board or zoning board of adjustment of a municipality where a casino is located; and any professional planner, or consultant regularly employed or retained by such a planning board or zoning board of adjustment. This has been limited to Atlantic City officials, but with serious consideration of expanding casinos elsewhere this provision may soon reach others.

Lifetime 'Substantial and Direct' Ban

No state employee, subsequent to the termination of his or her office or...