|Advisory Opinion No. 91-14:||Application of Public Officers Law §74 to employees of the Department of Motor Vehicles serving as "automotive facility inspectors," who wish to have their personal vehicles serviced by the repair shops they inspect.|
Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by Executive Law §94(15), the Commission hereby concludes that it would be a violation of Public Officers Law §74 for an AFI to inspect, certify or license a facility where he or she or a family member takes their car for service or conducts other personal business.
In response to public concern over dishonest and fraudulent practices in the automobile repair industry, the State of New York enacted the Motor Vehicle Repair Shop Registration Act of 1974. The Act seeks to further highway safety by:
[P]romoting the proper and efficient repair of malfunctioning or disabled motor vehicles and to protect the consumers of this state from dishonest, deceptive and fraudulent practices in the repair of such motor vehicles. These purposes will be accomplished by the enactment of legislation which require the registration of those engaged in the business of repairing malfunctioning or disabled motor vehicles and to exclude from that business those persons who engage in dishonest or fraudulent practice or who otherwise demonstrate unfitness for that business. That further, the purpose of this article is to protect the motoring public from improper repairs made to its vehicles for fair and reasonable fees and to eliminate unqualified automotive repair shops from engaging in the business of automotive repair to malfunctioning or disabled vehicles. Vehicle and Traffic Law §398-a.
The Act authorizes the Commissioner of Motor Vehicles to take such actions as she deems necessary to implement the purpose of the law, including "the power to receive applications for and, upon approval of any such application, issue a certificate of registration."(1) The Commissioner may conduct any investigations she deems proper and, further, "may promulgate rules and regulations necessary to effectuate the purposes of the law including standards for personnel, equipment and facilities."(2) The Act permits DMV to suspend, revoke or refuse to issue registrations, impose civil penalties and require restitution when violations are found.
AFIs conduct field inspections and investigations of automotive facilities. They are permanently assigned to districts within the following regions: North Amityville, Yonkers, Albany, Syracuse, Buffalo and Queens. Each region may contain 10-15 AFIs who evaluate consumer complaints by contacting complainants, licensees and registrants to determine the validity of the complaint. They may disassemble portions of vehicles to inspect and examine the repair and maintenance of the automotive systems and equipment to determine nature, extent and necessity of the work performed. Among other duties, AFIs gather, label and prepare evidence in complaint cases, prepare investigative reports of findings and make recommendations.(3)
AFIs are required to conduct periodic inspections of all licensed automotive facilities to insure compliance with the laws, rules and regulations governing such facilities. They evaluate the operations and activities of automotive facilities and testify at administrative hearings. Often they are required to serve suspension and revocation orders issued by the Commissioner of Motor Vehicles against automotive facilities.
This inquiry concerns whether there is a real or perceived conflict of interest for an AFI to take his or her personal vehicles for repairs to a facility which the AFI licenses, certifies or inspects.
The rule with respect to conflicts is provided in Public Officers Law §74(2):
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.
Following the rule with respect to conflicts of interest, Public Officers Law §74(3), provides standards of conduct which address not only actual but perceived conflicts of interest. The standards which are relevant to this inquiry are found in subsections (d), (f) and (h). Those subsections provide, in relevant part, the following:
. . . .
(d) No officer or employee of a state agency, member of the legislature or legislative employee should use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others.
. . . .
(f) An officer of a state agency, . . . should not by his conduct give reasonable basis for the impression that any person can improperly influence him or unduly enjoy his favor in the performance of his official duties, or that he is affected by the kinship, rank, position or influence of any party or person.
. . . .
(h) An officer or employee of a state agency, . . . should endeavor to pursue a course of conduct which will not raise suspicion among the public that he is likely to be engaged in acts that are in violation of his trust.
The Attorney General recently held that a DSS Deputy Commissioner of the Division of Adult Residential Care may not accept a position on the advisory board of a foundation affiliated with an association of operators of adult homes without creating a conflict of interest and violating the Code of Ethics of Public Officers Law §74. In 1979 Op. Atty. Gen. 66, the Attorney General stated that:
A public official must not only be innocent of any wrongdoing, but he must be alert at all times so that his acts and conduct give the public no cause for suspicion. He must give no appearance of a potential conflict between his official duties and personal activities even though an actual conflict is not present.The Commission finds such reasoning relevant here. AFIs have an important responsibility to ensure that automotive repair facilities are operated in a fair and honest manner. An AFI has influence in the licensing, certification and inspection of repair facilities. His or her actions may lead to the imposition of fines or the closing of a repair facility. This responsibility leads the Commission to conclude that, to avoid a §74 violation, AFIs may not have repairs of personal vehicles performed by facilities they license, certify or inspect.
DMV has indicated that spouses of AFIs rather than the AFIs themselves have taken personal automobiles to the repair facilities to prevent the appearance of impropriety. They also suggest that there can be no finding of a conflict if the cost of repairs is reasonable and within the standard and existing rates. The Commission does not consider such arguments dispositive. Unless there could be absolute certainty that the repair facility is ignorant of a spouse's relationship to an examining AFI, the appearance of a conflict cannot be avoided. Such a certainty is unlikely. Fair and reasonable cost does not resolve the issue, either. Special care, preference in service and other benefits can be given to obtain special treatment from an AFI. The question of an appearance of a conflict of interest will always be raised in such circumstances, regardless of whether a relative brings the car in for repairs or whether the billing practice is fair and reasonable.
To prevent a conflict of interest from arising, DMV should ensure that no AFIs or members of his or her family shall conduct personal business with any facility the AFI licenses, inspects or certifies. The Commission considered requiring AFIs to take their vehicles to any other region but decided the travel necessary given the considerable sizes of some of the districts would pose undue difficulties.
While the Commission is aware that the potential for mischief still lies, it is placing confidence in the AFIs to conduct themselves in an ethical manner. Should the Commission receive any complaints concerning matters discussed herein, other remedies will be considered. DMV should endeavor to ensure that AFIs not only remain free of actual conflicts of interest but remain free of apparent conflicts as well.
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.
Joseph M. Bress, Chair
Angelo A. Costanza
Donald A. Odell, Members
Dated: July 29, 1991
1. L.1974, c. 946, §2, amended L.1975, c. 641, §1.
2. Vehicle and Traffic Law §398-g.
3. The foregoing information was provided by the DMV position announcement issued 3/26/76.