|Advisory Opinion No.88-2:|
|Application of §73 of the Public Officers Law, on and after January 1, 1989, to non-paid or per diem members of State boards or councils.|
Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by §94(15) of the Executive Law, the Commission renders its opinion that there is no clear expression of intent as to whether such individuals should be covered with all the restrictions contained in §73 as it is effective on January 1, 1989.
The Commission concludes that:
Because of the general nature of the question of statutory interpretation and application of §73 to non-paid or per diem members of State boards or councils, the Commission states that it will apply this advisory opinion to any similar request and to any complaint alleging a violation of §73 on and after its effective date.
. . . the term, "state officer or employee" shall mean:
- heads of state departments and their deputies and assistants;
- officers and employees of statewide elected officials;
- officers and employees of state departments, boards, bureaus, divisions, commissions, councils, or other state agencies;
- members or directors of public authorities . . . public benefit corporations and commissions at least one of whom is appointed by the governor, >who receive compensation other than on a per diem basis . . . . (emphasis added)
Subparagraph (iv) provides that those members or directors of public authorities, public benefit corporations and commissions who receive compensation on other than a per diem basis will be defined as State officers or employees for purposes of §73 and subject to its provisions. Those members or directors who receive a per diem payment or receive no per diem payment (or, no compensation) are not so covered by the provisions of that section.2
Members of State boards and councils are not similarly excluded. The definition of State officer or employee contained in §73(1)(i)(iii) includes officers and employees of State boards, commissions and councils without reference to basis of payment.
It is the comparison of subparagraphs (iii) and (iv) of §73(1)(i) of the Public Officers Law which results in the question before the Commission. We note that the term "commission" is included in both subparagraph (iii) and (iv) of §73(1)(i) of the Public Officers Law. Under subparagraph (iii) no limitation as to coverage based on manner of compensation is set out for members of commissions--or for boards or councils. Under subparagraph (iv) the limitation of coverage of §73 based on manner of compensation is set forth for only commissions and does not include boards or councils.
The Board of Trustees of State University of New York governs the State University and exercises all its corporate powers.4 The Trustees exercise broad powers and duties relating to the administrative, fiscal and planning functions of the entire State University of New York system.5
The members of a Board of Visitors of a facility of OMH and OMRDD consult, advise and work with the facility director with respect to community relations and conditions at the facility, visit and inspect the facility and have authority to investigate charges of patient abuse or mistreatment.6 State University College Councils exercise general supervision over a college or university campus subject to the oversight of the Board of Trustees.7
The Board of Regents of the University of the State of New York presents a different issue in the consideration of this question. The Board of Regents exercises legislative functions concerning the educational system of the State, determines State educational policy and carries out laws relating to education.
Unlike the other State boards or councils which fall under subparagraph (iii) of §73(1)(i), the Board of Regents is defined by the Education Law as the "head of the department" of Education.8 The Board is, therefore, defined under paragraph (i) of §73(1)(i) of the Public Officers Law and not under either the subparagraph at issue concerning boards and councils or the subparagraph affecting public authorities, public benefit corporations or commissions. The Commission cannot consider the members of the Board of Regents in the same category as other non-paid or per diem members of boards or councils or authorities, public benefit corporations or commissions.9
To compare the responsibilities of those individuals who serve on State boards and councils with those members or directors of public benefit corporations and public authorities who specifically would not be covered by §73, the Commission reviewed some of the powers exercised by the non-paid or per diem members or directors of these entities.
In general terms, public authorities and public benefit corporations have authority to borrow and invest money, enter into and execute contracts, and provide major services to the public. Such entities whose non-paid or per diem members would not be covered by §73 include the Metropolitan Transit Authority, most of whose members receive per diem payments, Dormitory Authority of the State of New York, New York State Energy Research and Development Authority, New York State Environmental Facilities Corporation, Municipal Assistance Corporation for the City of New York and the Urban Development Corporation. Each of these entities has broad public responsibility in the areas of commuter transportation, development and conservation of energy resources, financing and planning solid waste and pollution control facilities, the issuance and sale of bonds to assist municipalities and the provision of capital resources to acquire, construct or improve educational, cultural, public or other facilities.
The Commission recognizes the importance of public spirited citizens from the private sector serving the government of New York State. The wealth of experience and varied backgrounds which these citizens bring to government cannot be understated. These individuals serve without compensation or for a per diem, in effect, contributing their knowledge and experience to New York State.
In a letter to the Commission concerning the issue of coverage of non-paid and per diem board and council members, the Counsel to the Governor indicated the lack of clarity in the language of paragraph (i) and stated that there was no desire to place an undue burden on people who were essentially volunteering their services. The Commission agrees that there is ambiguity in the paragraph. The term "commissions" is set forth in both subparagraphs (iii) and (iv). There is no apparent explanation for that. The term "commission" is also referred to twice in the definition of the term State agency in §73(1)(g), once with no limitation and once with the limitation that at least one of its members be appointed by the Governor.11 And, although the word "council" is not referred to in the definition of State agency, subparagraph (iii) refers to officers and employees of councils.12
The Commission could conclude that the subdivision can be strictly construed to require that non-paid or per diem board members are covered by §73. We could determine that §73 covers non-paid members of State boards and councils, while not so covering similarly situated individuals of other entities. The language supports that conclusion and that would be our reading but for the fact that we think that conclusion was probably not intended. The result would not be beneficial to the citizens of this State. The Commission is unwilling to reach that result without providing an opportunity for either a clear statutory provision that §73 covers non-paid or per diem board and council members or a clarification in the law to treat non-paid or per diem members or directors of boards, councils, commissions, authorities or public benefit corporations the same, whether that results in coverage by §73 or not.
The Commission believes that there is little apparent distinction among commissions, public benefit corporations, authorities, and boards and councils to treat them so differently. It is possible that the term "commissions" also was meant to include boards and councils. In any event, it is our judgment that there is a lack of a clear expression of intent to treat such non-paid or per diem board or council members the same as or differently than commission members.
The Commission is concerned that its temporary suspension of the enforcement of §73 not result in the absence of a code of ethical conduct to be applicable to these non-paid or per diem board or council members. The Commission believes that the confidence of the public in the integrity of the operation of these boards and councils demands that they be required to formulate a code of ethics with a mechanism for enforcement if this suspension is to continue pending legislative action. The Commission has concluded that, during the suspension of the application of §73, these boards and councils should be required to adhere to a code of ethical conduct. This same consideration should apply to any statutory exemption which is enacted to cure the ambiguity now present.
Therefore, each affected board or council which desires that the Commission continue this suspension of enforcement of §73 as to it beyond March 1, 1989, or earlier if legislation is enacted affecting these members, until June 30, 1989, shall adopt a code of conduct according to its legal procedure. At a minimum, the code shall contain the same restrictions, if any, to which such State boards and councils are now subject under §73 of the Public Officers Law which expires December 31, 1988.15 The code of conduct should also include provisions relating to conflicts of interest of members of such State boards or councils and to appearances, practicing or rendering of services for compensation before the member's own State board or council or the State agency with which they have a responsibility or relationship; provisions affecting post-service appearances, practicing or rendering of services for compensation before the member's own State board or council or the State agency with which he or she had a responsibility or relationship; and a procedure for the enforcement of the provisions of such code.
The Commission will recommend to the Governor and the Legislature that the coverage of §73, as it is effective on and after January 1, 1989, be clarified as to its application to non-paid or per diem members of State boards or councils. By June 30, 1989, the Commission will review its determination in this advisory opinion should no legislative action have been taken before then.
All members of the State boards and councils affected by this opinion will continue to be subject to the provisions of §74 of the Public Officers Law on and after January 1, 1989. 16 Section 74 establishes a rule with respect to conflicts of interest which provides that:
2. (n)o officer or employee of a state agency . . . should have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties in the public interest.Standards for the application of that rule are contained in §74 and will be utilized to determine adherence to that section. Under §94(9)(g) and (11)(c) of the Executive Law, the Commission may receive and investigate complaints which allege a violation of §74.
Additionally, under §73-a of the Public Officers Law, a member of a State board or council affected by this Opinion may be required to file a financial disclosure statement if the position he or she holds is designated policy-making by the appropriate appointing authority. Any such member who is so required to file a financial disclosure statement will continue to be subject to the restriction contained in §73(3) against receipt of compensation for appearances or rendition of services before the Court of Claims.17 The Commission will not suspend enforcement of that provision during the suspension period provided for in this opinion.
Elizabeth D. Moore, Chair
Joseph J. Buderwitz, Jr.
Angelo A. Costanza
Robert B. McKay, Members
Dated: December 29, 1988