STATE OF NEW YORK
STATE ETHICS COMMISSION

Advisory Opinion No. 90-5:

Application of §§73 or 74 of the Public Officers to a State employee who wishes to continue to hold outside employment as a photographer and copy writer when his outside assignments include depiction of Department employees, events in which the Department and other State agencies are officially involved, and some of the groups with which he has an association by virtue of his regular job responsibilities.

INTRODUCTION

The following advisory opinion is issued in response to an inquiry whether §73 or §74 of the Public Officers Law limits or prohibits a State employee from engaging in outside employment which involves contact with the Department of [] (hereinafter, [Department]), other State agencies and some of the groups with which he is involved in his employment by the State. 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 outside employment engaged in by the requesting individual constitutes a conflict under §74 of the Public Officers Law to the extent that the outside employment involves depiction or coverage of [Department] officers or employees, or contact with or coverage of matters which involve any persons or groups with which the requesting individual has contact by virtue of his position with the [Department] or which are regulated by the [Department].

BACKGROUND

The rule with respect to conflict of interest is contained in §74 of the Public Officers Law. It provides, in subsection 2,
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.
The requesting individual is a full-time employee of the [Department] as a Senior Marketing Representative. For the past seven years, the requesting individual has been working outside his Department position, with the permission of the [Department], as a freelance photographer and copy writer. The work involves taking pictures and writing accompanying captions and stories for a newspaper which supports the interests of a special interest association, which has a monthly publication circulated in the New York State area. It contains articles and photographs as well as advertising by various producers in the industry to which the association is affiliated.

He began the outside work as a result of his work with the [Department]. He was approached at a trade show by the editor of the paper because he was taking photographs of the show for the [Department].

In addition to the work for the newspaper, the requesting individual works as a freelance photographer for advertising agencies and private individuals. He has stated that he receives his assignments as a result of contacts made through his employment with the [Department] and through word of mouth. The jobs he performs for the newspaper are assigned by telephone. The staff for the newspaper will call and offer the assignment. If he has the time and the inclination, he accepts. He receives compensation for the time spent taking the photographs and writing, and for the actual photographs selected for publication. He does not receive any benefits from the newspaper. The other freelance jobs are performed according to the needs of the client, but do not involve retainers or contracts.

Each year, the requesting individual has submitted the required forms for approval of outside employment to his agency,1 but recently was advised that he must make some modifications in his outside work activities. Specifically, the [Department] advised the requesting individual that he must restrict the clientele with which he is dealing when taking photographs and writing copy.2

DISCUSSION

The requesting individual's official position with the State agency requires that he be in contact with individuals in the industry which gave rise to the association. The work also involves, at least on occasion, the taking of photographs related to the work which is being done by the [Department]. The requesting individual has, as a requirement of the position, developed a rapport with the industry representatives and association members.

In his private business pursuits, the requesting individual has put himself in the position of being able to profit from the relationships that he has developed in State service. During the day, he is making contacts with the industry representatives and association members and in the evening, he is photographing the same people to promote their business activities. During the day, the requesting individual is making contacts with the industry spokespeople, and in the evenings he may be photographing their products for an advertising agency.

The question is whether this contact with the industry and association members in the course of pursuing an outside career as a photojournalist constitutes a conflict under §74 of the Public Officers Law.

In order to constitute a conflict of interest for the purposes of §74 application, the Commission must find a substantial conflict with the proper discharge of the requesting individual's duties in the public interest which results from the private business affairs. In interpreting similar conflict of interest provisions, the Attorney General determined that a substantial conflict of interest may be present for the purposes of regulating outside employment without actual conflict being shown.3 That opinion states that ". . . (i)n order to maintain public confidence in the workings of government, it is necessary that even the appearance of impropriety be avoided." Public officials should avoid private employment which compromises their ability to make impartial judgments solely in the public interest. Even the appearance of impropriety should be avoided to maintain public confidence in government.4

In the February, 1988, issue of the newspaper put out by the association, the requesting individual submitted a photograph for publication in which the Commissioner of the [Department] was shown discussing a vital program with industry representatives during a break from the January meeting of the association. The photograph was subsequently published. It is clear that the photograph was of an official [Department] activity and could have been submitted to the [Department] as part of a regular assignment. Using the photograph for private gain, the requesting individual engaged in conduct which is in violation of §74 of the Public Officers Law. Specifically, §74(3)(a) states that no employee of a State agency should accept other employment which will impair his independence of judgment in the exercise of his official duties. The individual would have to provide photographs which are in agreement with the views of the publisher of the newspaper and which could be at odds with [Department] positions.5 It is possible that advertising agencies specifically seek out the requesting individual because of his involvement in the [Department] sponsored program in order to develop a rapport and access into the Agency which otherwise would be impossible. It is not necessary for such events to have actually occurred. It is enough that an appearance of a problem exists for there to be a breach of the public trust. In order to remain free from the biases and judgments of a publisher, or the appearance that he is somehow affiliated with the interests and views of a publisher or advertising concern, and in order to be free from impairment of judgment in the exercise of official duties, the requesting individual may not photograph and write about [Department] events or employees for the purpose of selling such photographs or copy for profit.

The requesting individual has raised the point that, with only one exception, all of his work appears in the newspaper without credits. He has not made the same representation with respect to his freelance advertising work. It is of no consequence in this case, however, because the contact that the individual has with the industry representatives and association members in taking his photographs and writing the copy is the problem, not any attribution for the work.6

Section 74(3)(g) states that an employee of a State agency, ". . . should abstain from making personal investments in enterprises which he has reason to believe may be directly involved in decisions to be made by him or which will otherwise create substantial conflict between his duty in the public interest and his private interest." The conflict created between the interests of the clients in private business with whom the requesting individual works in public service is inherent and substantial. One cannot work for the State during the day and develop relationships with clients, who are subject to regulation or oversight by the [Department], for private profit at night.

The taking and selling of photographs which reasonably could have been taken as a part of the requesting individual's regular job duties is also prohibited as a violation of §74(3)(h). That subdivision requires State employees to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in activities which are in violation of the public trust. It is not necessary for the requesting individual to commit an abuse. It is enough that the impression is created that he may violate public trust.

It is for the reasons stated above that the Commission concludes that the requesting individual may not for compensation from private entities, photograph or write copy about individuals with whom he works in his State position or which are regulated by that agency. Nor may he sell photographs which he might reasonably be expected to take in the course of his employment to private clients. In addition, he may not work as a private photographer or freelance photographer for advertising agency work if the client is involved with industry or an association or other entity with which he has contact during the course of his State employment.

The requesting individual may continue taking photographs and writing copy to sell to trade publications or private clients, so long as the subject matter of his work does not conflict with and is completely unconnected to his State position, does not require the use of State equipment and is not performed on State time.

Thus, the Commission concludes that the facts as stated above constitute a violation of §74 of the Public Officers Law.

This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding concerning the requesting individual 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

Angelo A. Costanza
Norman Lamm
Robert B. McKay, Members

Dated: February 15, 1990


ENDNOTES

1. The [Department] policy concerning outside employment is contained in the Employee Manual under the Conduct and Responsibility heading, at page 4. The policy states, in relevant part:

As a Department employee, you may engage in any employment, work or activity, with or without compensation, during off duty hours which does not conflict or have the potential to conflict or interfere with the performance of your official duties and does not lessen your job effectiveness and efficiency or decrease your physical ability to fully perform your duties. Employment as described in this section shall mean the expenditure of a significant amount of your time or effort in the performance of duties or activities outside your Department responsibilities and for which you receive compensation in the form of money, goods or services.

2. The Memorandum which was issued to the requesting individual from the Director of Human Resources Management stated the following:

This memorandum will modify our Approval for Other Than Department Employment dated January 20, 1989, in that effective immediately, such Approval is contingent upon your restricting your clientele to persons and/or organizations who are not regulated by or under the promotional purview of this Department.

3. 85 Op.Att'y Gen. 37 (1985).

4. Inf.Op.Atty Gen. No. 84-11,84-58.

5. The mere fact that the pictures for which compensation is received and department policy are in accord does not cure the appearance problem. The "appearance" also depends upon the fact that the requesting individual is receiving private income to perform duties which are part of his State job.

6. In fact, one could conclude that no attribution intentionally occurs in order to mask the fact that a [Department] employee is receiving revenue for services rendered in connection with regulated entities of the [Department] or official duties of the individual.