STATE OF NEW YORK
STATE ETHICS COMMISSION

Advisory Opinion No. 90-24: Application of the Commission's regulations on Outside Activities, 19 NYCRR Part 932, pertaining to restrictions on policy-makers from holding positions as an officer of a political party or organization or member of a political party committee, to members of the Municipal Police Training Council.

INTRODUCTION

The State Ethics Commission ("Commission") received an inquiry from the Division of Criminal Justice Services ("DCJS") concerning whether members of the Municipal Police Training Council ("MPTC") are subject to the Outside Activities regulations of the New York State Ethics Commission. To resolve this inquiry, the Commission must determine whether such individuals are State officers or employees as defined in the Public Officers Law.

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 members of the MPTC are not "state officers or employees" of the State of New York for purposes of §§73, 73-a or 74 of the Public Officers Law, and, therefore, are not subject to those sections of Law or to the Commission's regulations.

BACKGROUND

The MPTC was established in 1959 pursuant to the "Municipal Police Training Council Act." (L.1959, c. 46) The New York State Sheriffs Association and the New York State Association of Chiefs of Police supported the creation of the MPTC for the purposes of coordinating matters in the field of police training. In creating the MPTC, the State of New York recognized its responsibility to ensure effective law enforcement by "establishing minimum basic training requirements for local police, and also by encouraging advanced in-service training programs." (L.1959, c. 46, §1(f)). Then Governor Nelson A. Rockefeller, in his Memorandum On Bills Approved, stated that the MPTC placed the State in the "forefront of the movement for responsible law enforcement training."

Section 839 of the Executive Law provides for the selection of the MPTC's eight members as follows:

  1. three shall be appointed by the governor

  2. two shall be appointed by the governor from a list of at least six nominees submitted by the New York state sheriffs association . . .

  3. two shall be appointed by the governor from a list of at least six nominees submitted by the New York state association of chiefs of police . . .

  4. one shall be the commissioner of police of the city of New York or a member of his department, designated by such commissioner and approved by the governor.1

The MPTC is created within the DCJS. Its responsibilities include the development of rules and regulations regarding the minimum physical qualifications for police officers and minimum courses of study. The MPTC may recommend rules and regulations, covering attendance requirements and equipment and facilities to be required at approved municipal police training schools, which the Governor may promulgate. Further, the MPTC may recommend studies, surveys and reports to be made by the DCJS and may recommend to the Governor and other rules and regulations to carry out the functions of the MPTC.

Section 839(6) of the Executive Law left in place, from the original act, the following provision:

Membership on the council shall not constitute the holding of an office, and members of the council shall not be required to take and file oaths of office before serving on the council. The council shall not have the right to exercise any portion of the sovereign power of the state.2
This provision appears to have been added to enable sheriffs to serve as members of the MPTC and avoid the State constitutional prohibition against sheriffs holding more than one office. The New York State Constitution, in pertinent part, states that
[t]he sheriff and the clerk of each county shall be chosen by the electors once in every three or four years as the legislature shall direct. Sheriffs shall hold no other office. (Emphasis added.)3
The Commission's regulations governing Outside Activities, contained in 19 NYCRR Part 932.2, provide as follows:

  1. No head of a State department, individual who serves as one of the four statewide elected officials, individual who serves in a policy-making position or member or director of a public authority (other than a multi-state authority), public benefit corporation or commission at least one of whose members is appointed by the Governor shall serve as an officer of any political party or political organization.

  2. No head of a State department, individual who serves as one of the four statewide elected officials, individual who serves in a policy-making position or member or director of a public authority (other than a multi-state authority), public benefit corporation or commission at least one of whose members is appointed by the Governor shall serve as a member of any political party committee including political party district leader (however designated) or member of the national committee of a political party. (Emphasis added.)

All MPTC members have been designated policy-makers by the office of the Governor.

The question for the Commission to decide is whether, in view of Executive Law, §839(6), members of the MPTC are subject to the provisions of §73-a (financial disclosure) and §74 (code of ethics) of the Public Officers Law. Inasmuch as the members are non-paid and are reimbursed solely for their expenses, they would not be subject to the provisions of §73 of the Public Officers Law should they be considered State officers or employees for purposes of §§73-a and 74.4

DISCUSSION

To determine whether an office is a public office, it is necessary to observe the powers and functions attached to the position. "There is implied in every public office an authority to exercise some portion of the sovereign power of the state in making, executing, or administering the law. This investment of the incumbent with some of the functions pertinent to sovereignty is one of the most important of the criteria of public office." People ex rel. Corkhill v. McAdoo, 98 A.D. 312, 90 N.Y.S. 689.

The exercise of sovereign power is an essential element in determining whether an office is a public office. In Matter of New York Post v. Moses, 12 A.D.2d 243, 250, rev'd., on other grounds 10 N.Y.2d 199, the New York Court of Appeals stated that the "[i]ndicia of public office are tenure and duration and that the functions and duties of the office concern and affect the public, with such duties involving some portion of the sovereign power." Further, the Appellate Division, in delineating between public officers and public employees, stated in Dawson v. Knox, 231 A.D. 490, 492, aff'd. 267 N.Y. 565, that "the duties of a public official involve some exercise of the sovereign--those of a public employee do not. The one has independent official status; the other has rights under a contract of employment."

MPTC's enabling statute clearly spells out that membership on the MPTC does not constitute the holding of an office and that members do not exercise any power of the sovereign. Both characteristics are necessary in defining a public officer and, consequently, a "state officer." Section 2 of the Public Officers Law provides, in relevant part, that the term "state officer" includes

[e]very officer, appointed by one or more state officers . . . and authorized to exercise his official functions throughout the entire state. . . . The office of a state officer is a state office. The office of a local officer is a local office.
Section 839(6) of the Executive Law was enacted precisely to avoid the result that the members of the MPTC would be designated public officers. The reason for this provision is to permit sheriffs to be appointed to the MPTC without running afoul of the State constitutional prohibitions that a sheriff can hold no office other than sheriff. Under the Public Officers Law, the Commission must conclude that MPTC members do not hold a public office and, therefore, they are not "state officers."5

Finally, the Commission must determine whether MPTC members could be classified as "employees" of the State of New York. The term "employee" is often specially defined by statutes, and whether one is an employee or not within a particular statute will depend upon facts and circumstances.6 There are four elements which are generally considered in determining whether the relationship of employer and employee exists: (1) the selection and engagement of the employee; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of employee's conduct.7

While selection and engagement, payment of wages, and the power of dismissal are relevant to the existence of an employment relationship, they are not conclusive of the question of whether the relationship exists. The really essential element of the relationship is control.8 Generally, when a person for whom services are performed has the right to control and direct the individual who performs services not only as to result but also as to details and means by which the result is accomplished, the individual subject to direction is an "employee."9 In Riverbend Country Club v. Patterson, Tex. Civ. App., 399 S.W.2d 382, 383 (1965), the court defined employee as "a person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed."

In the present inquiry, neither the Governor, who appoints the members of the MPTC, nor the DCJS, controls or directs the members to achieve a certain result when they are performing their duties as MPTC members. Further, the MPTC members are not under any contract to hire.

Under §73-a(1)(c)(ii), the term "state officer or employee" means "[o]fficers and employees of statewide elected officials, officers and employees of state departments, boards, bureaus, divisions, commissions, councils or other state agencies . . . who hold policymaking positions, as annually determined by the appointing authority." (Emphasis added.)10 In promulgating its rules concerning Outside Activities, the Commission determined that policy-makers should be covered by the limitations contained therein. To be designated a policy-maker, however, the individual first must be a State officer or employee, as defined in the appropriate section of the Public Officers Law.

In the present inquiry, members of the MPTC do not possess the indicia of employment that other employees of the State enjoy. They are not participants in the State retirement system, do not receive State employee benefits, and (apart from their expenses) are not paid from State funds. The State does not exercise "control" in the sense that is meant in an employer-employee relationship over the members of the MPTC. The MPTC determines its own hours of service and its work product is advisory in nature. The Commission concludes that, the members of the MPTC cannot be considered "state employees" for the purposes of §73-a and §74 of the Public Officers Law.

CONCLUSION

Section 839(6) of the Executive Law specifically states that membership on the MPTC does not constitute the holding of an office, and that the MPTC shall not have the right to exercise any portion of the sovereign power of the State. The Commission concludes that this language clearly precludes such members from being considered as "state officers" for the purposes of §§73-a or 74 of the Public Officers Law. Neither can they be considered "state employees" under the Public Officers Law §§73, 73-a or 74, for the reasons cited above. As MPTC members are not subject to these provisions, they may not be designated policy-makers for purposes of §73-a and, consequently, are not subject to the "Outside Activities" regulations contained in 19 NYCRR Part 932.

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
Donald A. O'Dell, Members

Dated: November 15, 1990


ENDNOTES

1. See Executive Law, §839(1).

2. See L.1972, c. 399.

3. McKinney's Const., Art. XIII, §13.

4. Ch. 242 of the Laws of 1989 exempted non-paid or per diem members of boards, councils and commissions from the definition of "state officer or employee" subject to §73 of the Public Officers Law.

5. The Commission notes that §839(4) of the Executive Law provides that "[a]n incumbent sheriff, chief of police or commissioner of police, as the case may be, shall immediately upon the termination of his holding of said office or employment, cease to be a member of the council." The presence of this language further supports the Commission's view that the MPTC must always have a sheriff as a member to justify the exception from public office status provided by the statute.

6. See, for instance, Workers' Compensation Law, §115, where the term "employee" means a person who is engaged in one of the occupations enumerated in the statute, or who is in the service of an employer whose principal business is that of carrying on or conducting hazardous employment, upon the premises or at the plant, or in the course of his employment away from the plant, of his employer; see also Labor Law, §2(5), where "employee" is defined as a "mechanic, working person, or laborer working for another for hire."

7. See Albany College of Pharmacy v. Ross, 94 Misc. 2d 389, 404 N.Y.S.2d 779 (1978).

8. See Peer v. Babcock, 230 N.Y. 106, 129 N.E. 224 (1920); Haykl v. Drees, 247 A.D. 90, 286 N.Y.S. 38, appeal dismissed 272 N.Y. 577 (1936).

9. See People ex rel Hoefle v. Cahill, 188 N.Y. 489, 81 N.E. 453 (1907); People ex rel Satterlee v. Board of Police, 75 N.Y. 38 (1878).

10. The Commission issued guidelines to appointing authorities to assist them in determining who should be named as policy-makers. Factors to be considered included whether (a) a person had been determined to be managerial pursuant to subdivision 7 of §201 of the Civil Service Law because he or she formulates policy; or (b) a person is in the non-competitive class under §2.2 of the classified service of the State of New York, and, in Appendix 2 of the Rules and Regulations of the Civil Service Department, is designated by the symbol "phi" on the basis that the position requires the performance of functions influencing policy; or (c) a person exercises responsibilities of a broad scope in the formulation of plans for the implementation of goals or policy for a State agency or acts as an advisor to an individual in such a position.