STATE OF NEW YORK
STATE ETHICS COMMISSION

Advisory Opinion No. 89-1:

Application of §73 of the Public Officers Law to members of a public benefit corporation who are paid on a per diem basis, when the public corporation's enabling statute specifically subjects the corporation to the limitations of §§73 and 74 of the Public Officers Law; application of §73-a of the Public Officers Law to such trustees.

INTRODUCTION

The following advisory opinion is issued in response to a request from the Counsel for the City University Construction Fund for an advisory opinion as to whether the definition of "state officer or employee" contained in §73(1)(i) of the Public Officers Law precludes application of §73 of the Public Officers Law to the members/trustees of the City University Construction Fund (the "Fund").

Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by §94(15) of the Executive Law, the Commission hereby renders its opinion that the definition of "state officer or employee" found in §73(1)(i) of the Public Officers Law does preclude application of §73 to the Fund's trustees, except to the extent such application is provided by §73(3). Furthermore, such trustees would continue to be subject to §74, which was not amended by the Ethics in Government Act of 1987.

DISCUSSION

Paragraph (i) of subdivision 1 of §73 of the Public Officers Law provides, in relevant part, as follows:
the term "state officers or employees" shall mean: . . . (iv) members or directors of public authorities, other than multi-state authorities, public benefit corporations and commissions at least one of whose members is appointed by the Governor, who receive compensation other than on a per diem basis, and employees of such authorities, corporations and commissions. (emphasis added)
The City University Construction Fund was established as a public benefit corporation by §4 of Chapter 782 of the Laws of 1966. Currently, two of its seven part-time, uncompensated trustees are appointed by the Governor.

Subdivision 3 of §6274 of the Education Law, which governs the trustees of the Fund, provides as follows:

The trustees of the Fund shall serve without salary, but each trustee shall be reimbursed for his, or her actual and necessary expenses incurred in the performance of his or her official duties as a trustee of the Fund. The trustees of the Fund may engage in private employment or in a profession or business (if not otherwise prohibited from doing so by virtue of any other public office), subject to the limitations contained in sections 73 and 74 of the Public Officers Law. The Fund shall, for the purposes of such sections, be a "state agency", and the trustees thereof shall be "officers" of the agency for the purposes of said section. (emphasis added)
In the opinion of the Commission, the definition of "state officer or employee" contained in §73 of the Public Officers Law precludes the application of its limitations to the trustees of the Fund except as noted below.

Clearly, the Legislature intended that §73 of the Public Officers Law would not apply to non-salaried or per diem members or directors of public authorities, public benefit corporations and commissions. It carved out the exception for such members or directors in §73(1)(i)(iv) of the Public Officers Law. The new definition of State officer and employee in §73(1)(i)(iv) must be read as a specific restriction of the language contained in §6274(3) of the Education Law, which was enacted a number of years ago. Therefore, any restrictions or limitations contained in such §73, unless otherwise specifically provided, shall not apply to the trustees of the Fund.

Under the rules of statutory construction, two statutes, enacted at different times but with reference to the same subject matter, are to be read in pari materia and are to be construed together and applied harmoniously and consistently (§221 of the Statutes Law). The Legislature is presumed to act with deliberation and knowledge of existing statutes on the same subject (§222 of the Statutes Law). When the Legislature crafted §73 and created the aforementioned exception for members and directors of public authorities, public benefit corporations and commissions, those members and directors were to be excluded from coverage. So, to the extent that the new law (§73 of the Public Officers Law) modifies the old law (§6274 of the Education Law), the new law shall apply. However, any portion of the law which was not amended, remains in effect. Since §74 of the Public Officers Law, which contains the Code of Ethics, was not amended by the Ethics in Government Act, to the extent it was applied by virtue of §6274(3) of the Education Law to the trustees of the Fund prior to January 1, 1989, it shall continue to apply.

Finally, the Ethics in Government Act added §73-a to the Public Officers Law, dealing with financial disclosure. In subdivision (c) of that section, "state officer or employee" is defined to include

. . . (iii) members or directors of . . . public benefit corporations and commissions at least one of whose members is appointed by the Governor, and employees of such authorities, corporations and commissions who receive annual compensation in excess of $30,000 or who hold policy-making positions, as determined annually by the appointing authority. . . .
As members or directors of a public benefit corporation, the trustees of the Fund are "state officers or employees" to whom §73-a applies. Since the trustees are required to comply with the §73-a provisions concerning financial disclosure, they are subject to limitations contained in subdivision three of §73. That subdivision precludes the appearance or rendition of services or the transaction of other business for compensation before the Court of Claims by State officers or employees who file financial disclosure statements.1

Pursuant to §94(15) of the Executive Law, an opinion rendered by the Commission, until and unless amended or revoked, shall be binding on the Commission in any subsequent proceeding unless material facts were omitted or misstated by the person who requested the opinion.

All concur:

Elizabeth D. Moore, Chair

Joseph J. Buderwitz, Jr.
Angelo Costanza
Norman Lamm
Robert B. McKay, Members

Dated: March 8, 1989


Endnotes

  1. Section 73(3) of the Public Officers Law provides, in pertinent part, "No . . . State officer or employee who is subject to the provisions of §73-a of this Chapter shall receive, directly or indirectly, or enter into any agreement express or implied for, any compensation, in whatever form, for the appearance or rendition of services by himself or another against the interest of the State in relation to any case, proceeding, application or other matter before, or the transaction of business by himself or another with, the court of claims."