New York State
Ethics Commission


Advisory Opinion No. 92-9: Application of Public Officers Law §§73 and 74 to political party chairs in counties having a population in excess of 300,000.

Introduction

The following advisory opinion, issued in response to an inquiry from [counsel to a county political party], addresses whether the chair of a political party in a county having a population of more than 300,000 may engage in lobbying activities before the New York State Legislature and the Executive Department, including its agencies and boards. Counsel has also asked whether the chair may engage in lobbying activity before political subdivisions within the county and outside the county in which he or she is political party chair.

Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by Executive Law §94(15), the Commission hereby renders its opinion that Public Officers Law §73(7)(a) prohibits a political party chair in [] County from appearing or rendering services for compensation before any State agency relative to certain matters. Public Officers Law §73(12) prohibits a political party chair in [] County from orally communicating, with or without compensation, with State agencies as to the merits of those matters encompassed by §73(7)(a) on which the political party chair's firm, association or corporation is appearing or rendering services. The provisions of Public Officers Law §73 do not address a political party chair's lobbying activities before the New York State Legislature or before counties. Political party chairs are not covered by Public Officers Law §74.

Applicable Statutes

Public Officers Law §73(1)(k)(ii) defines the term "political party chairman" to include:

the chairman of a county committee . . . and his or her successor in office from a county having a population of three hundred thousand or more or who receives compensation or expenses, or both, during the calendar year aggregating thirty thousand dollars or more.

Public Officers Law §73(7)(a) provides:

No . . . political party chairman 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:

(i) the purchase, sale, rental or lease of real property, goods or services, or a contract therefor, from, to or with any such agency;

(ii) any proceeding relating to ratemaking;

(iii) the adoption or repeal of any rule or regulation having the force and effect of law;

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

(v) licensing;

(vi) any proceeding relating to a franchise provided for in the public service law.

Public Officers Law §73(12) states:

A . . . political party chairman, who is a member, associate, retired member, of counsel to, or shareholder of any firm, association or corporation which is appearing or rendering services in connection with any case, proceeding, application or other matter listed in paragraph (a) or (b) of subdivision seven of this section shall not orally communicate with or without compensation, as to the merits of such cause with an officer or employee of the agency concerned with the matter.

Public Officers Law §74(1) defines the term "state agency" to mean:

any state department, or division, board, commission, or bureau of any state department or any public benefit corporation or any state department or any public benefit corporation or public authority at least one of whose members is appointed by the governor.

Discussion

Based upon 1990 census figures, [ ] County has a population in excess of 300,000. Therefore, the chair of the [political party] Committee is a political party chair for purposes of Public Officers Law §73.

Public Officers Law §73(7)(a) prohibits a political party chair from receiving, or contracting for, compensation for appearing or rendering services or assisting others to appear or render services before any State agency relative to certain matters.(1) The Commission consistently has interpreted the word "appear" to include not only actual physical appearances or advocacy on behalf of another before a State agency, but also the preparation and submission of a grant or contract proposal to the agency.(2)

Therefore, a political party chair may not engage in compensated lobbying or assistance to others to lobby before the State agencies relative to those matters encompassed by §73(7)(a)(i) - (vi).

Public Officers Law §73(12) goes beyond the prohibitions contained in §73(7)(a) by prohibiting a political party chair from orally communicating with State officers and employees, with or without compensation, as to the merits of those matters encompassed by §73(7)(a) on which the political party chair's firm, association or corporation is appearing or rendering services.(3)

Nothing in Public Officers Law §73 addresses a political party chair's lobbying activities before the New York State Legislature or before counties.

Public Officers Law §74 provides a code of conduct for officers and employees of State agencies, members of the legislature and legislative employees and prohibits acts that give the appearance of a conflict of interest. The term "state agency," as found in Public Officers Law §74(1), does not include county political parties. Therefore, political party chairs are not covered by this section of the law.

Conclusion

The Commission concludes that the provisions of Public Officers Law §73(7)(a) prohibit a political party chair in [] County from engaging in compensated lobbying before State agencies relative to those matters contained in Public Officers Law §73(7)(a). Public Officers Law §73(12) prohibits a political party chair in [] County from orally communicating, with or without compensation, with State agencies as to the merits of those matters encompassed by §73(7)(a) on which the political party chair's firm, association or corporation is appearing or rendering services. The provisions of Public Officers Law §73 do not address a political party chair's lobbying activities before the New York State Legislature or before counties. Political party chairs are not covered by Public Officers Law §74.

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:

Joseph M. Bress, Chair

Barbara A. Black
Angelo A. Costanza
Donald A. Odell, Members


Dated: May 19, 1992


Endnotes

1. Although the requesting individual phrased his inquiry in terms of the State Executive Department, its agencies and boards, this opinion addresses a political party chair's service before "any state agency" defined in Public Officers Law §73(1)(g), a much broader category.

2. See, for example, the Commission's Advisory Opinions Nos. 89-2, 89-7, 89-9, 90-7, 90-18 and 90-19. While these opinions apply the definition of the term "appearance" to the revolving door provisions of Public Officers Law §73(8), the Commission's interpretation of the term "appearance" is equally applicable to §73(7)(a). See Advisory Opinion No. 92-7 where the Commission, in a case involving §73(7)(a), interpreted the term "appearance" to include the performance of work that would become part of an application to be submitted before a State agency.

3. Public Officers Law §73(12), by reference to §73(7)(b), also prohibits political party chairs in the five counties of New York City from oral communications before any New York City agency in connection with a list of matters similar to the list recited in §73(7)(a).


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