|Advisory Opinion No. 92-3:||Application of Public Officers Law §74 to Environmental Conservation Officers who seek to engage in activities over which they have enforcement authority.|
The following advisory opinion is issued in response to an inquiry from the Department of Environmental Conservation ("DEC") concerning the application of Public Officers Law §74 to certain Environmental Conservation Officers ("ECOs") who wish to engage in activities over which they have enforcement authority. The inquiry concerns individual ECOs who wish to (a) sell ginseng, (b) operate a charter fishing business and (c) operate a marina with a bar and restaurant.
Pursuant to its authority under Executive Law §94(15), the State Ethics Commission ("Commission") hereby renders its opinion that it is a violation of Public Officers Law §74 for ECOs to engage in the specified activities for profit over which they have official enforcement responsibility.
ECOs are responsible for enforcing a wide range of provisions of the Environmental Conservation Law ("ECL"). Criminal Procedure Law §1.20(34) specifically grants ECOs the status of "police officer," thus charging them with responsibilities similar to those held by others in law enforcement.(1) Pursuant to their Civil Service job specifications:
ECOs are located only in the Department of Environmental Conservation and are stationed throughout New York State. . . . Positions in this class are law enforcement oriented as indicated by their police officer status; by the nature and frequency of the enforcement problems they encounter; by the policy of the State and the Department of Environmental Conservation regarding the apprehension and prosecution of violators. . . . Every ECO must be prepared to perform the full range of environmental law enforcement duties and must possess the full range of knowledge and abilities these duties require.
Typical activities, tasks and assignments include:
enforc[ing] environmental laws . . . investigat[ing] complaints of violations and misdemeanors . . . present[ing] the State's case in local criminal court in order to facilitate conviction of violators and misdemeanants . . . promot[ing] compliance with environmental laws and individual responsibility for care of the environment at meetings of school groups, service groups, sportsmen's clubs and other interested organizations in order to facilitate enforcement activities . . . compil[ing] a variety of reports and records of enforcement activities in order to document these activities.
As to usual working conditions:
ECOs are required to work long and irregular hours on outdoor patrol, sometimes in extreme weather conditions, especially during hunting season. Furthermore, they may receive telephone complaints and reports at any time of day or night and may investigate such reports at any time.(2)
ECOs are given a broad range of authority to conduct warrantless searches to enforce the law. They may:
[S]earch without search warrant any boat or vehicle of any kind, any box, locker, basket, creel, crate, game bag, package or any container of any nature and the contents of any building other than a dwelling whenever they have cause to believe that any provision of this article or of any law for the protection of fish, shellfish, crustacea, wildlife, game or protected insects has been or is being violated, and to use such force as may be necessary for the purpose of examination and search. (ECL §71-0907(4)(b).)
The civil and criminal penalties for violating the ECL and rules and regulations promulgated pursuant to it include ECL §§71-4001 and 4003, respectively:
(a) A person who violates any provision of the environmental conservation law, or any rule, regulation or order promulgated pursuant thereto, or the terms or conditions of any permit issued thereunder, shall be guilty of a violation (and) . . . . (c) shall be subject upon conviction to imprisonment for not more than fifteen days or to a fine of not more than two hundred fifty dollars, or to both such imprisonment and such fine.
Except as otherwise specifically provided elsewhere in the environmental conservation law, a person who violates any provision of the environmental conservation law, or any rule, regulation or order promulgated pursuant thereto, or the terms or conditions of any permit issued thereunder, shall be liable to a civil penalty of not more than five hundred dollars, and an additional civil penalty of not more than five hundred dollars for each day during which each such violation continues.(3)
Three ECOs now seek to participate in outside activities which require DEC licenses and/or over which ECOs have enforcement responsibility: (a) the sale of ginseng, (b) charter fishing and (c) the operation of a marina, bar and restaurant.
Ginseng is a protected plant in New York State.(4) Its sale has been regulated by DEC since 1987:
Any ginseng dealer residing in New York must obtain a dealer's permit from the department. Any nonresident ginseng dealers who purchase wild or cultivated New York ginseng must obtain a dealer's permit from the department and comply with the Part. This permit will be valid for a calendar year or as established by the department.(5)
DEC, through its ECOs and other employees, regulates and controls the collection, sale and conservation of wild ginseng and requires ginseng dealers to obtain permits, keep records and file reports every 90 days of all commerce in ginseng.
The ECL authorizes ECOs to enforce all State laws relating to the taking of fish.(6) For instance, DEC, through its ECOs, regulates and enforces all aspects of the taking, possession and sale of fish including open and closed seasons, size limits, daily and seasonal catch limits and the manner and method of taking.(7) Violations of ECL pertaining to fishing can result in arrests, seizures, fines, penalties and forfeitures.(8)
Marina with bar and restaurant
ECL §§15-0505 and 15-0507 mandate that DEC investigate and regulate docks, piers and wharves extending into the waters of New York State and compel the owners to obtain DEC permits to remove, erect, reconstruct or repair such docks, piers and wharves as necessary.
ECL Article 71 authorizes ECOs to enforce all State laws relating to the taking, possession and sale of fish, shellfish and crustacea. ECOs stationed in particular oceanside areas are responsible for preventing the removal of shellfish from polluted ocean beds and regulating and inspecting fish, shellfish and crustacea taken from New York waters for ultimate sale to individuals, restaurants and businesses.
As police officers, ECOs must enforce the general criminal laws of the State, often including those pertaining to the consumption and sale of alcohol.
Alcoholic Beverage Control Law §128 states, in relevant part:
It shall be unlawful for any . . . police inspector, captain, sergeant, roundsman, patrolman or other police official or subordinate of any police department in the state, to be either directly or indirectly interested in the manufacture or sale of alcoholic beverages or to offer for sale, or recommend to any licensee any alcoholic beverages.
Further, Alcoholic Beverage Control Law §100.1 provides:
(a) A police officer employed in this State, having written permission and consent from his commanding officer, may work in a premises solely licensed to sell beer at retail for off-premises consumption under section 54 of the Alcoholic Beverage Control Law.
(b) A copy of written consent shall be kept on the licensed premises throughout the period of employment of such police officer in such licensed premises.
(c) Except as provided in this Part, no police officer employed in this State shall be employed by, or work in, any premises licensed to sell alcoholic beverages.
Public Officers Law
The code of ethics, found in Public Officers Law §74, provides minimum standards against which State officers and employees are expected to gauge their behavior. It is directed at addressing the conflict between the obligation of public service and private, often personal, financial interest.
As DEC employees, ECOs are governed by §74. The rule with respect to conflicts of interest is contained in Public Officers Law §74(2):
No officer or employee of a state agency . . . should have any interest, 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 apparent conflicts of interest. For present purposes, the following sections are relevant:
(a) No officer or employee of a state agency . . . should accept other employment which will impair his independence of judgment in the exercise of his official duties.
. . . .
(d) No officer or employee of a state agency . . . should use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others.
(e) No officer or employee of a state agency . . . should engage in any transaction as representative or agent of the state with any business entity in which he has a direct or indirect financial interest that might reasonably tend to conflict with the proper discharge of his official duties.
(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.
(g) An officer or 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.
(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.
. . . .
DEC Division of Law Enforcement Policy Article 1 §51 prohibits ECOs from engaging in outside employment if the activity conflicts with Public Officers Law §§73 or 74. Public Officers Law §74 seeks to prevent actual and apparent conflicts of interest.
It is DEC's view that ECOs may not engage in commercial activities they regulate because the ECOs would be placed in situations in which they would be required to monitor their own or their colleagues' compliance with the ECL. Furthermore, DEC believes that a public perception problem would arise should ECOs engage in activities they regulate.(9)
The Commission has consistently held that, pursuant to Public Officers Law §74, State officers and employees may not engage in commercial activities over which their State agency, or the employees themselves, have authority. For example, in Advisory Opinion No. 90-5, the Commission found that §74 prohibited a State employee from outside employment as a photographer and copy writer when his outside assignments included depiction of some of the groups in which he had an association by virtue of his regular job responsibilities. The Commission reasoned that "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."
In Advisory Opinion No. 90-25, the Commission held that §74 precluded persons designated as policymakers from serving on the boards of directors of not-for-profit agencies licensed by the individual's employing agency. Similarly, Advisory Opinion No. 91-4 prohibited employees of an agency who had direct or indirect job responsibilities relating to the oversight of day care centers from serving on the board of directors of a day care center. In that opinion, the Commission held that:
The perception that an individual may be motivated in the performance of his or her job duties by a private interest concerning that day care center, rather than the public interest involving the enforcement of the statutes and regulations relating to day care centers in an unbiased and professional manner, leads to a violation of Public Officers Law §74. The conflict between private interest and public interest, whether real or perceived, supports the finding of such a violation.
The ability of the Department to enforce its laws and rules depends upon the ECOs carrying out their duties responsibly, fairly and without favor, perceived or actual. An ECO involved in a ginseng business, charter fishing or marina and bar would be engaged in a business over which he or she has regulatory enforcement duties and over which the Department has continuing jurisdiction and enforcement power. Such involvement would constitute an interest in substantial conflict with the proper discharge of the ECO's duties because he or she would be enforcing the laws pertaining to his or her own business, businesses of colleagues as well as that of his or her competitors. The public would reasonably question whether an ECO so involved was performing his or her duties in the public's interest or in his or her own interest.
An ECO who owns, operates or is employed by a DEC regulated business cannot resolve the conflict of interest under the Public Officers Law simply by recusing him or herself from enforcement of requirements as to that business. Although the public must expect fair and even enforcement of the environmental and other laws under the police power of ECOs, a question would still exist about how diligently the ECO could enforce the law against a fellow officer or even a competitor. Even appropriate conduct by such an ECO may be viewed as favoritism to a fellow ECO, or selective enforcement against the competition, when compared to discretionary conduct in relation to a member of the general public.
The public relies on its public servants to ensure compliance with the laws of the State. This is especially so in the case of public servants who are police officers. Police officers are held by law to particularly high standards of trust and expectations of law-abiding conduct.(10) Their judgments must be above any suspicion of being influenced by any personal interests. Thus, the ECOs' status as police officers adds a significant dimension to this discussion. That responsibility is inconsistent with an ECO's simultaneously engaging in the specific enterprise over which he or she enforces the law.
The Alcoholic Beverage Control Law ("ABCL") prohibits all police officers, including ECOs, from having a direct or indirect interest in the sale of alcoholic beverages (with very limited exceptions not applicable here). As an officer charged with enforcing the laws of the State, the ECO may be required to respond to violations of the ABCL and the Penal Law that involve the use of alcohol. Irrespective of the ABCL, the Commission considers the prospect of ECOs' selling alcohol and potentially enforcing the laws pertaining to alcohol in the same facilities to be inherently in conflict and in violation of the conflict of interest provisions found in the Public Officers Law.
In sum, the Commission finds that Public Officers Law §74 absolutely prohibits ECOs from engaging in the proposed business enterprises.
The Commission's decision to restrict the activities of ECOs is firmly grounded on New York State Court of Appeals precedent. As early as 1891 that court upheld rules which severely restricted outside employment of police officers. (People ex rel. Ulrich v. Bell, 125 N.Y. 722, 26 N.E. 756.) In 1963, the court reaffirmed and clarified its position. A group of New York City police officers challenged a New York police department rule that prohibited them from undertaking other employment while they were off-duty. The court said that "it was not unreasonable for (the police commissioner) to come to the conclusion . . . that outside employment seriously interferes with keeping the police . . . fit and ready for action at all times." (Flood v. Kennedy, 12 N.Y.2d 345, 348, 190 N.E.2d 13, 14, 239 N.Y.S.2d 665, 667.) These rules have been held to be in the interest of public policy. (Id.)
There are many lower court cases that illustrate the rule of Flood v. Kennedy. Of particular significance are Masi v. Kirway, 60 Misc. 2d 103, 302 N.Y.S.2d 310 (1969), and Matter of Trelfa v. Village of Centre Island, 54 A.D.2d 985, 389 N.Y.S.2d 22 (1976). In the former, "[t]he regulation under attack prohibited outside gainful employment because the superintendent thought it in the best interest of the force and, therefore of the people, to not only preserve the energies of the men but to avoid conflict of interest that might arise if troopers, by reason of their outside employment, might have to enforce the law against an employer." (Id. at 312.) In Trelfa, the Village of Centre Island was held to be within its authority when it absolutely prohibited outside employment of village police officers.
The Commission's decision is consistent with precedent set by the New York State attorney general who determined that a substantial conflict of interest may be present for the purposes of regulating outside employment without actual conflict being shown. The opinion states that:
In 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.(11)
The attorney general reaffirmed this policy in an informal opinion rendered in July 1989, specifically applying it to restrictions on off-duty employment by police officers and peace officers:
Police officers and peace officers, with their law enforcement duties and unique positions of authority in the community, must be particularly sensitive about their public image and, therefore, must avoid even appearances of impropriety.
In sanctioning the imposition of similar restrictions by numerous municipalities and villages, the attorney general said:
You have asked whether your village police department may prohibit a member of its auxiliary police force from joining another voluntary service such as the volunteer fire department, rescue squad, or ambulance squad. . . . [T]he rules governing off-duty employment of police officers are, in our opinion, instructive as to peace officers who exercise law enforcement duties. . . . Restrictions on outside employment of police officers have been found to serve a valid public purpose. . . . You have indicated that the positions in question, if held by a member of the auxiliary police force, could create problems involving overlapping jurisdiction and divided responsibilities and loyalties. Under these circumstances, the restrictions that you propose appear reasonable.(12)
The applicability of these principles to ECOs is inescapable if we are to preserve public confidence and avoid conflicts of interests.
The rule with respect to conflicts of interest provided in Public Officers Law §74 states that no officer or employee of a State agency should have any interest, 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. Substantial conflicts are found here. The Commission concludes that officially regulating the activity as a police officer and participating privately in the activity for profit is contrary to the letter and intent of the Public Officers Law. Therefore, the Commission concludes that ECOs who engage in business activities over which they have regulatory jurisdiction would be in violation of Public Officers Law §74, the code of ethics for State employees.
This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding concerning the persons who requested it and who acted in good faith, unless material facts were omitted or misstated by the person in the request for opinion or related supporting documentation.
Joseph M. Bress, Chair
Angelo A. Costanza
Donald A. Odell, Members
1. Executive Law §835 defines "police officer" as "a member of a police force or other organization of a municipality who is responsible for the prevention and detection of crime and the enforcement of the general criminal laws of the state. . . ."
2. See the complete job specification for Environmental Conservation Officer, Grade 14; Occ. Code 1616000 and DEC Employment Brochure, "How to Become a New York State Environmental Conservation Police Officer."
3. These sections establish the minimum civil and criminal penalties for Environmental Conservation Law violations. More severe penalties, including those for felonies, are contained in individual provisions of Article 71.
4. Environmental Conservation Law §9-1503(4).
5. 6 NYCRR §193.7.
6. Environmental Conservation Law Articles 11, 13 and 71.
7. Environmental Conservation Law Title 13 of Article 11 and Article 13.
8. Environmental Conservation Law Title 9 of Article 71.
9. DEC correspondence to the State Ethics Commission dated September 4, 1991.
10. See Sharkey v. Police Department, Town of Southampton, 578 N.Y.S.2d 599 (1992) and Toro v. Malcom, 404 N.Y.S.2d 558, 44 N.Y.2d 146, 375 N.E.2d 739 (1978).
11. Op. Atty. Gen. 85-37.
12. Op. Atty. Gen. 89-30.
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