Peter Kiernan, counsel to David Paterson during his brief term as governor from 2008 to 2010, has reluctantly agreed to pay a $3,500 fine for engaging in prohibited contact with state agencies after he left government service.
The Joint Commission on Public Ethics said Kiernan’s activities on behalf of his law firm, Schiff Hardin, violated Public Officers Law §73(8)(a)(iv), which bars former employees in policy-making jobs from appearing before state agencies for two years.
Kiernan left state government with Paterson on Dec. 31, 2010, so he was barred during all of 2011 and 2012.
Under a settlement agreement Kiernan signed with the commission on Dec. 11, 2012, he acknowledged signing a response to a solicitation for a legal services contract with the state Division of the Budget on Dec. 14, 2011, in which he identified himself as “lead partner and counsel” for Schiff Hardin.
In addition, Kiernan said he signed a response to a solicitation from the state Thruway Authority for a contract for legal work on Feb. 1, 2012, and described himself as Schiff Hardin’s “lead attorney.”
Both communications were forbidden under the law, the commission said.
“Public servants’ ethical obligations extend beyond their State employment, and the post-employment restrictions are an important mechanism to ensure that individuals can’t improperly trade on their prior public service,” Joint Commission Executive Director Ellen Biben said in a statement.
Kiernan, who was traveling yesterday and unavailable for comment, said in his own statement that the requests for proposals he responded to came for contracts on matters “with which I had absolutely no dealings when I was a state employee, on which I had no inside information or contacts, and which concerned matters on which I would have worked only in a back office capacity, if at all, which is explicitly permitted.”
Kiernan said there was “broad authority” to support his position that he did not violate the Public Officers Law. In particular, he cited an unreported 1999 opinion by Albany Supreme Court Justice Bernard Malone Jr. in Helin v. New York Ethics Commission in which the justice said an ex-employee’s “communication” with a state agency did not equate to the verbs “appear” or “practice” for purpose of the Public Officers Law.
“JCOPE staff would not agree to a settlement in which I would not admit that I violated the statute,” Kiernan said. “It agreed to state only that I was mistaken in my understanding of the statute. JCOPE acknowledged that I did not intend to violate the law, but would not say so for the record. Rather than endure a prolonged and expensive JCOPE hearing process and potential litigation, on advice of counsel, I agreed to the settlement.”
Schiff Hardin was not hired by either state agency.
Kiernan is being represented pro bono by William Josephson of Fried, Frank, Harris, Shriver & Jacobson.
John Milgrim, a spokesman for the ethics commission, said that no matter Kiernan’s understanding of the ethics laws, he committed violations according to the agreement he signed.
“Mr. Kiernan repeatedly violated the ethics law,” Milgrim said yesterday. “He admitted to those violations and has been held accountable for them.”
Milgrim said JCOPE and its predecessor agencies, the Commission on Public Integrity and the state Ethics Commission, both enforced the law against violators under Public Officers Law §73(8)(a)(iv) and issued advisory opinions about what constituted prohibited contact between former state officials and state agencies.
Milgrim said a post-employment case similar to Kiernan’s was described at length in Advisory Opinion 11-01 that was issued by the Commission on Public Integrity just after Kiernan left public service but before he signed the responses to the two solicitations by state agencies.
Paterson himself was fined $62,125 by the Commission on Public Integrity just before he left office for accepting five New York Yankees tickets to the 2009 World Series.
In an interview last year with the Law Journal, Kiernan said he was working on public pension, distressed local governments, debt restructuring and other issues as part of Schiff Hardin’s public practice law group (NYLJ, June 22, 2012).
“Due to the state’s strict ethics laws, I generally cannot deal with New York state government matters and government personnel for a two-year period,” Kiernan told the Law Journal. “So I have limited contact with persons I dealt with as counsel. But I always welcome the chances to be involved with elective and appointive politicians that I have met throughout my governmental career.”
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