STATE OF NEW YORK
STATE ETHICS COMMISSION

Advisory Opinion No. 89-10:

Whether a State employee is precluded by §73 or §74 of the Public Officers Law from receiving royalties from the sale of a book written on his own time and using personal resources.

INTRODUCTION

The following advisory opinion is issued in response to an inquiry whether §73 or §74 of the Public Officers Law precludes a State employee from receiving royalties from a book he co-authored on a topic related tangentially to his State position, written on his personal time and using private resources.

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 §74 of the Public Officers Law does not preclude the State employee from receiving royalties from the sale of the book, as long as: (1) the book was written on his own time and not on State time; (2) no State property, personnel or other resources were utilized; (3) the subject matter was sufficiently unrelated to his job responsibilities so that authorship or the advice or material provided in the book could not be viewed as part of his job; (4) the book was not written for an organization or audience which is regulated by, regularly negotiates with, or has contracts with the individual's employing agency; (5) the book does not identify the author as a State employee (although a biography may, among other items, list such credential); (6) the State agency where the author is employed does not advertise, otherwise promote or endorse the book; (7) the author does not advertise, otherwise promote or endorse the book when he is performing his State duties, whether involving training or otherwise; (8) the State agency does not use the book or make it available as part of any of its training programs; and (9) the book contains a disclaimer that the opinions and statements contained in the book are those of the author only and do not represent the opinion or interest of the Department of [ ] or any other State agency of New York.

BACKGROUND

The individual who requested this opinion currently serves as a Principal Attorney to the Department of [ ] ("Department"), and is, therefore, subject to the provisions of §73 and §74 of the Public Officers Law, which set forth certain restrictions on the business and professional activities of State officers and employees.

In his position, the individual has responsibility for supervising legal staff in all areas of the Department's jurisdiction. The individual has been employed by the Department for approximately 20 years. During his tenure there, he has assisted in the development of a successful program offering statewide training to assist municipal officials, through seminars, workshops, publications and informal opinions, with matters concerning zoning and planning.

As part of his current job duties, the individual conducts specialized training on the topics of zoning and planning for municipal officials. He conducts the training jointly with a planning expert from the Department's staff.

The municipal zoning and planning training presentations consist of a slide show with photographs of projects, followed by an oral discussion. The Department does not provide written materials to the participants. While the Department has produced legal memoranda on land use regulation (there are seven such memoranda in print), these memoranda are not used in the training courses. The Department's booklet [ ] is made available to participants who specifically ask for it.

The training provided to municipal officials is rudimentary, consisting of basic, introductory level material geared toward new planning and zoning board members. There is little information given about case law in the area, except on the rare occasion when a case contains the best explanation of a particular zoning or planning concept.

The requesting individual has co-authored, and intends to have published, a book on planning and zoning law ["title"]. The book is in the nature of a treatise or textbook, and it provides more sophisticated material than the training classes presented by the [Department]. The book describes the basic concepts involved, discusses the legal parameters imposed by statute, case law and local regulation and discusses practical solutions to land use control problems. The contents of the book include information about zoning, its relationship to planning, how zoning works, the various administrative devices used to accomplish zoning objectives (variances, special use permits, site plan approval, etc.), the boards which administer zoning regulations (municipal legislative bodies, zoning boards of appeal, planning boards) and various innovative zoning techniques. The discussion of all elements of the law is extensive, and the discussion of court decisions is comprehensive and detailed.

As noted in the inquiry, planning and zoning is a responsibility of local governments in New York State. Neither the [Department], the individual's current employer, nor any of his previous employers, has jurisdiction over local governments' exercise of their planning or zoning powers, in any area that has a material bearing on the facts of this opinion.1 While the [Department] currently offers training to local officials on planning and zoning matters, there is no requirement that local officials participate in the training or adhere to the technical advice provided.

The book is being published by [a non-profit organization] which provides educational services for local government officials. The intention is to sell the book to local government officials, developers, and the interested public throughout New York State and elsewhere. Profits from sales will be shared by the authors and the publisher, and, otherwise, will be shared by the requesting individual's co-author, [the non-profit organization] and the publisher.

The individual asserts that no State resources were utilized in the writing or production of this book. It was written during non-office time, using no office materials, personnel, or other resources of the State. Research was done during non-office time, using public law libraries and private facilities. Department staff was not involved in any way in the writing or production of the book.

APPLICABLE LAW

Reviewing the provisions of §73 of the Public Officers Law, it is the opinion of the Commission that co-authoring a book under the circumstances described is not a violation of any of the specific restrictions contained therein. Section 73 sets forth certain restrictions on business and professional activities of State officers and employees, e.g. making compensated appearances before State agencies on certain matters, prohibiting the receipt of gifts valued more than $75 under certain circumstances or precluding certain post-employment activities.

Section 74 of the Public Officers Law contains the following rule with respect to conflicts of interest:

No 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.

DISCUSSION

In considering the matter, the Commission weighed whether the book was written for an organization or audience which is regulated by, regularly negotiates with, or has contracts with the [Department], which employs the individual; whether the individual will receive any money from the [Department] as a result of co-authoring the book; whether State personnel, equipment or time was used to write or prepare the book in any way; and, whether writing the book could be considered relevant to or part of the official duties of the requesting individual as Principal Attorney to the [Department].

In deciding whether there would be a conflict of interest for the individual to receive profits from the sale of a book on a topic related to his work responsibilities, the Commission requested an opinion from the [Department] regarding the relationship of the requesting individual's work to the book. The Executive Deputy responded, in part, as follows:

. . . Mr. XXXX has continued to devote a small percentage of his time to providing technical assistance and training to local government officials on matters relating to land use regulation. This is done because of his longstanding professional interest in the subject. The book was not prepared as part of that effort, however, and in fact differs substantially from the Department's activities in scope, emphasis and level of detail. Indeed, Mr. XXXX's interest in the subject matter, and his own research and analysis - carried out on his own time - have worked to the advantage of the Department's educational programs.

I believe that the production of this book is sufficiently unrelated to Mr. XXXX's responsibilities at the Department to conclude that it is not reasonably connected with this employment. (emphasis added)

In considering whether the material presented in the book was gained in the course of fulfilling the individual's job duties, the Commission, in light of all the facts and circumstances involved in this matter, accepts the written representation of the State official involved that authoring the book is not reasonably connected to the individual's job. Writing a book is beyond the scope of the individual's current job responsibilities, and the Commission has no interest in stifling an individual's creative initiative.

The target audience for the book is composed of municipal government officials, some of whom will no doubt participate in the [Department] training program. The business relationship between the municipal officials and the [Department] arising out of participation in the training program is not one which would be adversely affected in the event the participants purchase the requesting individual's book. As noted earlier, there is no requirement that local officials receive any training in zoning or planning, nor do they have to seek the [Department's] technical advice on those topics. Further, the [Department] has taken no steps to advertise the individual's book or make it available as part of its training.

The knowledge and information gained by the individual in fulfilling his State job's responsibilities can be separated from the research performed and the information which the individual used in order to write the book. The Commission has given due weight to the statement from the individual's supervisor that authoring the book is unrelated to the individual's job duties. The fact that the book does not identify the individual as a State employee and that the [Department] does not advertise the book or make it available at training are factors which tip the balance in favor of the individual.

In sum, given the foregoing circumstances, it is a benefit to the State to have an employee who is expert on this particular subject matter. That he acted upon his own initiative to write a book from which he will receive royalties does not conflict with the proper discharge of his duties for the [Department].

CONCLUSION

The Commission finds no violation of §74 of the Public Officers Law; while the individual has a financial interest in the sale of the book, that interest is not relevant to or part of the official duties of the individual or "in substantial conflict with the proper discharge of his duties in the public interest."

The audience for the book, mostly municipal planners and developers, is not one which is regulated by, regularly negotiates with or has contracts with the [Department]. The individual will not receive any award or money from the [Department] as a result of co-authoring the book.

The Commission concludes that the State employee may receive royalties from the publication of the book as long as the book was written on his own time and not on State time; no State property, personnel or other resources were utilized; the subject matter was sufficiently unrelated to his job responsibilities so that the authorship or the advice or material provided in the book could not be viewed as part of his job; the book does not identify the author as a State employee, although a biography may list such a credential; the State agency where the individual is employed does not advertise, otherwise promote or endorse the book; the individual does not advertise, otherwise promote or endorse the book when he is performing his State duties, whether involving training or otherwise; the State agency does not use the book or make it available as part of any of its training programs; and the book contains a disclaimer that the statements contained are those of the author only and represent the opinion or interest of no other person or organization.

If, in the future, the [Department] chooses to utilize the book in its training classes or endorses the book or requires its use by local government officials or employees, or its own employees, the individual would no longer be eligible to earn royalties, since writing the book could then be viewed as part of the individual's job duties. Should the individual retire or separate from State service, and the [Department] then chooses to utilize the book in its training classes, endorses the book or requires its use as described above, there is no question that the individual may earn royalties.

This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding concerning the person who requested it and who acted in good faith, unless material facts were omitted or misstated by the person in the request for opinion.

All concur:

Elizabeth D. Moore, Chair

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

Dated: December 14, 1989


ENDNOTES

1. The [Department] has a role in [ ] certain land planning and review.