New York State
Ethics Commission


Advisory Opinion No. 91-15: Application of Public Officers Law §§73 and 74 to State employees serving as certified foster parents for programs administered by State agencies.

Introduction

In Advisory Opinion No. 91-11, the State Ethics Commission ("Commission") was asked to consider the propriety of employees of a State agency on approved leaves of absence, serving as certified family care providers for the care of the agency's clients in their homes.(1) The New York State Division for Youth ("DFY") has requested a formal opinion from the Commission which, in essence, asks the Commission to expand upon Advisory Opinion No. 91-11 to the following circumstances concerning the application of Public Officers Law §§73 and 74:

  1. whether DFY employees and their spouses may serve as certified foster parents for children placed in the custody of DFY;

  2. whether DFY employees and their spouses may serve as certified foster parents for programs administered by other State agencies, such as the New York State Department of Social Services; and

  3. whether employees of other State agencies may be certified as foster parents by DFY.

Pursuant to Public Officers Law §§73 and 74, the Commission has jurisdiction over State officers and employees. The Commission does not have jurisdiction over their spouses. However, as DFY considers the status of spouses in the certification process and issues certificates jointly to foster parents, the Commission is of the opinion that whatever restrictions imposed on State employees for participating in State foster care programs by virtue of the Public Officers Law will, as a result, impart on the eligibility of employees' spouses to be foster parents.

Public Officers Law §73(4)(a) precludes State employees from selling goods or services valued in excess of $25 to any State agency unless such goods or services are provided pursuant to an award or contract let after public notice and competitive bidding. Section 73(7) prohibits State employees from making compensated appearances or receiving compensation for services rendered in certain matters before State agencies. Section 74 contains rules with respect to conflicts of interest and standards clarifying that rule.

Pursuant to Executive Law §94(15), the Commission concludes that there would be no violation of Public Officers Law §§73(4)(a) or 74 if:

  1. DFY employees serve as certified DFY foster parents, with the exception of certain supervisory DFY employees and employees who have been designated as serving in policy-making positions by DFY;

  2. DFY employees serve as foster parents for programs administered by other State agencies provided that the employees obtain the permission of their appointing authority to engage in the outside activity; and

  3. employees of other State agencies are certified by DFY as foster care parents, provided the employees receive the permission of their appointing authority to engage in the outside activity.

In all the above circumstances, the State employees may not, pursuant to the provisions of Public Officers Law §73(7), receive compensation for appearing before any State agency or receive compensation for services rendered in connection with their application for certification or the obtaining of reimbursement monies from any State agency. Any such appearance or rendition of services before the State agency must be uncompensated.

Background

DFY is authorized to establish, operate and maintain family care homes, pursuant to Executive Law §§501 and 502. The agency conducts an on-going recruitment program to locate families with the necessary qualities and motivation to serve as foster parents but, under its current policy, prohibits all State employees from serving as DFY foster parents.

Foster parents and their homes are certified by DFY in accordance with an official DFY policy manual. The certification process includes the submission of an application and three references to DFY, a personal home interview with a DFY staff member and an agency representative including a study of the applicant's home and neighborhood. Prospective foster parents must also be screened through the Department of Social Services' Statewide Central Register of Child Abuse and Maltreatment. DFY also obtains the abstract of any drivers in the household who would have the occasion to drive the foster care youth as part of the family's activities.

According to the DFY Policy and Procedures Manual, the marital status of an applicant is a factor in determining whether or not a certificate shall be granted only as it affects the ability to provide adequate care to foster children. All persons residing in the home are to be assessed in terms of how they may affect the DFY youth in the home.

If the applicant and his or her family and home are acceptable to the agency, DFY issues an operating certificate to the foster parent. Once certified, a "Placement Agreement" delineating the responsibilities of DFY and the foster parent is entered into by both the foster parent and a DFY representative, on behalf of the agency.

DFY reimburses certified foster parents for expenses related to providing necessities for the children in their care and custody. The reimbursements are referred to as "boarding care payments." Such necessities include personal care items and household furnishings for the use of the child, recreational activities, transportation, a weekly youth allowance as well as heat, electricity and other basic residential services. A clothing allowance is also provided for by DFY and administered by the foster parent, who must file a written report and provide receipts regarding all clothing purchases. It is DFY's opinion that any possible financial benefit derived by a DFY foster parent is incidental as the reimbursement is provided to offset the additional costs of housing an additional family member incurred by the foster parent. No direct compensation is paid to the foster parents.

Discussion

The Commission recently rendered Advisory Opinion No. 91-11 concerning the application of Public Officers Law §§73(4)(a) and 74 to a State agency's employees, on approved leaves of absence, serving as certified family care providers for agency clients in the employees' homes.(2) Of particular significance to DFY's inquiry are the standards the Commission identified for the evaluation of any State agency program in which agency employees are considered for participation as certified providers of service for agency clients.(3) These standards are the following:

  1. that the State agency employees provide a potential pool of eligible foster parents;

  2. that foster parents receive no compensation other than the prescribed allowance for the children's living expenses; and

  3. that no State agency employee who has direct official dealings with the foster care program is eligible to become a foster parent.

These standards are applicable to the case at hand.

As to the first condition, the Commission shall assume that, by virtue of the inquiry, DFY employees provide a potential pool of eligible foster parents and that any employee who desires to participate would go through the same certification and approval process as any other prospective DFY foster parent.

As in the case discussed in Advisory Opinion No. 91-11, DFY employee/foster parents would be required to enter into agreements with the agency. In the case of the State agency's proposal discussed in Advisory Opinion No. 91-11, participating employees would enter into agreements with the agency and would be eligible to receive a stipend from the agency in addition to the applicable reimbursement rate not to exceed the employee's State agency salary. The Commission rejected that agency's proposal because the agreement and stipend would cause the employees to be "doing business" with their State agency in the absence of public notice and competitive bidding, in violation of Public Officers Law §73(4)(a). However, unlike that State agency proposal, DFY foster parents do not receive any stipend or salary for their services and, therefore, there is no violation of Public Officers Law §73(4)(a).

To avoid a conflict of interest in violation of Public Officers Law §74, participating DFY employees should only be eligible to receive the same reimbursement amounts as any non-employee foster parents. This would overrule the issue raised in Advisory Opinion No. 91-11, where the State agency paid a stipend, in amounts up to $13,667, which were not available to non-State agency family care providers.

The Commission determines that DFY employees who administer the foster care program or who are involved in the certification of DFY foster parents and their homes are not eligible to participate. The Commission further concludes that DFY employees who have been designated as policymakers are also not allowed to become foster parents because of the positions of responsibility and influence the policymakers possess with the agency.(4)

DFY has also inquired whether its employees may become certified as foster parents under programs administered by other State agencies, such as the NYS Department of Social Services. Consistent with the standards set forth in Advisory Opinion No. 91-11, DFY employees may serve as foster parents without violating Public Officers Law §73(4)(a) provided that they receive no compensation other than reimbursement funds for their services and expenses. To avoid an appearance of a conflict of interest under Public Officers Law §74, DFY employees should receive no preferential treatment because they are DFY employees in the certification process. All covered employees, including DFY employees, should inform and obtain the approval of their agencies to engage in these outside activities.(5)

Likewise, there is no absolute bar for employees of other State agencies from participating in the DFY foster parent program as long as they receive only reimbursement funds for their services, they receive no preferential treatment from DFY in the certification process and there does not exist any other conflicts of interest between their State positions and their service as DFY foster parents. In this manner, the State employee's participation in the foster parent program will not violate Public Officers Law §§73(4)(a) or 74. Employees of other State agencies should receive the approval of their appointing authorities to participate in the DFY foster parent program.

One additional conflict of interest provision limits participating employees. Public Officers Law §73(7)(a) states:

No . . . state officer or employee, other than in the proper discharge of official duties . . . 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 in relation to any case, proceeding, application or other matter before a state agency where such appearance or rendition of services is in connection with:

. . . .

(iv) the obtaining of grants of money or loans;

(v) licensing; or

. . . .

Accordingly, State employees may not be compensated for their appearances or rendition of services before any State agency in relation to their certification as a foster parent or to their receipt of reimbursement funds for their services as a foster parent.(6) Any appearance or rendition of services before a State agency to seek reimbursement funds or to obtain certification as a foster parent must be uncompensated.

Conclusion

The State Ethics Commission concludes that it would not be a violation of Public Officers Law §§73(4)(a) or 74 for DFY employees to serve as certified foster parents, with the exception of DFY employees who have been designated as serving in policy-making positions by DFY or those employees involved in the certification process or who administer the foster care program; for DFY employees to serve as foster parents for programs administered by other State agencies provided that the employees obtain the permission of their appointing authority to engage in the outside activity; and for employees of other State agencies to be certified by DFY as foster care parents provided the employees receive the permission of their State agency to engage in the outside activity.

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:

Joseph M. Bress, Chair

Angelo A. Costanza
Donald A. Odell, Members

Dated: September 16, 1991


Endnotes

1. The Commission treats requests for opinions in confidence and does not relinquish identifying information in the public versions of the opinions.

2. The Commission did not have to consider the application of Public Officers Law §73(7) to the State agency proposal because any reimbursement funds to a participating State agency employee were under the administration of local departments of social services. Therefore, a State agency's participating employee would not need to come before his State agency (or any other State agency) in order to seek greater reimbursement funds.

3. As Advisory Opinion No. 91-11 notes, these standards are derived from a series of opinions rendered by the Board of Ethics of the City of New York.

4. For a full discussion of the significance of policymakers within their State agency, see Advisory Opinion No. 90-25.

5. While the Commission has promulgated regulations on the compensated outside activities of State employees who have been designated as serving in policy-making positions by their appointing authority (19 NYCRR Part 932), the regulations would not apply to policymakers serving as certified foster parents and who only receive reimbursement funds for such services. Part 932 requires that approval for an outside activity be obtained when the policymaker receives compensation for personal services actually rendered such as wages, salaries, professional fees, royalties, bonuses, etc. For purposes of this opinion, the Commission shall not consider the reimbursement funds received by a foster parent to be compensation.

6. Public Officers Law §73(7)(v) speaks in terms of "licensing" and does not specifically mention "certifying." Public Officers Law §73(1)(b) defines "licensing as "[a]ny state agency activity . . . respecting the grant, denial, renewal, revocation, enforcement, suspension, annulment, withdrawal, recall, cancellation or amendment of a license, permit or other form of permission conferring the right or privilege to engage in . . . any business or activity regulated by a regulatory agency . . . which in the absence of such license, permit or other form of permission would be prohibited." The Commission concludes that this definition of licensing covers certifying.



URL: http://www.nysl.nysed.gov/edocs/ethics/91-15.htm