Advisory Opinion No. 92-14: Application of Public Officers Law §74 to an employee of [a specific State agency] who is serving as chair of the planning board of a community [under the jurisdiction of that agency].
The following advisory opinion is issued in response to an inquiry from the Town Board [ ], concerning whether it would be a conflict of interest for an individual employed [in a specific job within a specific State agency] to serve as chair of the Town [ ] planning board.
Pursuant to its authority under Executive Law §94(15), the State Ethics Commission ("Commission") hereby renders its opinion that Public Officers Law §74 does not preclude [a specific State employee with a specific State agency] from serving as chair of the Town [ ] planning board. However, because the potential exists for the [State employee] to be, or appear to be, inappropriately influenced by information or opinions concerning a particular project obtained through service as a planning board member, Public Officers Law §74 requires the [State employee] to recuse himself in his State position from matters that are before or predictably may come before the planning board on which he serves. The [State agency] is responsible for determining whether its [employee] can meet his State responsibilities given the anticipated recusals and time demands of serving on the town planning board.
By letter dated February 25, 1992, the Town Clerk [ ], by order of the Town Board, inquired whether an individual employed by the [State agency in a specific job title] may serve as chair of the Town [ ] planning board. The Town [ ] is [under the jurisdiction of the State agency]. The town conveyed concerns that these positions may be incompatible or that service in both may constitute a conflict of interest. The requestor attached to her inquiry the town attorney's conclusion that he "did not find anything in the Town Law or otherwise that prohibits someone who is employed by a State agency from serving as a planning board chairman."
In discussion with town officials, the Commission learned that the Town [ ] recently began a major revision of its subdivision regulations. The regulations are not subject to any [State agency] review. Individuals opposed to the new regulations assert that the planning board chair's employment with the [State agency] constitutes a conflict of interest or the appearance of a conflict of interest and believe he should be prohibited from serving on the planning board because often items considered by the planning board also independently require [State agency] permits.
The planning board
In his correspondence, the town attorney indicated that the town board has sole responsibility to appoint the planning board members, including the chair. The seven planning board members serve without compensation for the term specified by the town board and can be removed by the board in the case of improper conduct or for good cause. Article 16 of the Town Law indicates that the planning board is responsible for preparing and changing a comprehensive master plan for the entire area of the town (§272-a), approving site plans and certain uses (§274-a) and approving plats (§276). Planning boards have ultimate authority over the approval and disapproval of the subdivision of real property. They often act in an advisory capacity to the town in areas of ordinance proposals, variances, etc. The chair has no legally prescribed function for a planning board, but customarily presides over meetings and votes on an equal basis with the other members. Meeting agenda are created by the requests for consideration received. Town officials advised the Commission that 20% to 25% of the agenda items considered by the [ ] planning board must also be approved by [State agency].
The [State agency]
The [State agency] was created [to achieve specific purposes].(1)
[Legal citation] governs [State agency] adoption of [ ] land use [ ].(2)
[Specific] areas are subject to significantly fewer [State agency] restrictions than are other zones. For example, [a certain facility] proposed to be built within the [specific] area of the Town [ ] would require planning board approval but would not, in the absence of some other pertinent factors, require [a State agency] permit. Some projects in the [specific] areas, however, require both planning board and [State agency] approval. [ ]
There is no required order for issuance of these permits because both bodies review projects over which both have jurisdiction according to their own respective criteria. While the [State agency] does not directly preempt, impact or detract from local land use and control, the [State agency's] denial of a permit may stop a project otherwise approved by the planning board.
[State employee job title]
According to job description supplied by the [State agency], about 80% of the duties of [the job title in question] involve:. . . staff reviews of projects submitted to the Agency as required by the [law], including planning, directing, conducting field inspections; holding preliminary meetings with project sponsors; maintaining liaison with local government officials, State agencies and other governmental and private entities as may be required to insure their input into the project review process; participating in public hearings on projects; and preparing written and oral reports and recommendations on projects.
Each project application is assigned to [a State agency] who is then directly responsible, under supervision, for the conduct of all aspects of its review as outlined above. Project assignments are made according to the size and complexity of the project as follows:
Approximately 10% of the [State employee's] time is devoted to the review of [specific] requests while another 10% of that time is involved in "compliance activities":
Conducts field investigations searching for and reporting on projects commenced, or about to be commenced, in violation of the [law]; conducts site investigations of alleged violations reported by others; and performs follow-up inspections of approved projects to insure that they are completed in accordance with the terms and conditions of approval.(4)
[The State employee] acts as "coordinator" for projects requiring [State agency] approval. Depending on the nature and needs of the project, the [State employee] is assisted by [State agency] staff specialists in [specific areas]. The permit is then forwarded to [a senior agency manager] who, for certain projects, may grant the permit. More complex projects are forwarded by the [senior agency manager] to [a specific State agency committee], which then comments and passes the project to the full [State agency].
The [State employee] serving on the [ ] planning board is [ ] involved in the most complex projects [ ]. [State agency] officials advised that, because there are numerous [State employees] serving in the [area], it was unlikely that the [State agency] would assign the [requesting State employee] to a project in which he was involved as a member of the [ ] planning board.
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. The code is directed at addressing the conflict between the obligation of public service and private, often personal, activities.
The rule with respect to conflicts of interest is provided in Public Officers Law §74(2).
[N]o 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 instance, Public Officers Law §74(3) states:
(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.
. . . .
(c) No officer or employee of a state agency . . . should disclose confidential information acquired by him in the course of his official duties nor use such information to further his personal interests.
. . . .
(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 foregoing provisions of the Public Officers Law prohibit State employees from participating in activities which conflict with their obligations to the State. In the present case, the Town [ ] is concerned that the [State employee's] State responsibilities may overlap on occasion with those required of the town planning board members and that this may constitute a conflict of interest. The Commission must also be concerned whether, given his planning board activities, the employee can properly serve the State.
Certainly, the impartiality of a review by the [State agency] employee serving on the town planning board is open to question when the project under review by the planning board is also a matter in which the [State agency] employee was closely involved as part of his State responsibilities. For the [State agency] employee to act in such a case would raise question as to whether he is utilizing confidential information obtained in his State responsibilities in violation of Public Officers Law §74(3)(c) and (h). The [State agency] also may question the [State employee's] impartiality when the project under review is one which the [State employee] considered or participated on as a member of the planning board. However, [State agency] officials advise that it will work no hardship on the [State agency] for the [State employee] serving on the [ ] planning board to be reassigned to matters other than those involving the Town [ ]. Consequently, whether acting in his capacity as [a State agency] employee or planning board member, the [State employee] must recuse himself from involvement with any activity with which he has been previously involved, either at the [State agency] or planning board level.
The Commission reached a similar conclusion in Advisory Opinion No. 92-10 when it considered whether State employees could participate on local commissions concerned with persons over whom the State employees had authority pursuant to their State responsibilities. In approving such participation, the Commission considered whether such local service could impair the employee's independence of judgment, or cause him to disclose confidential information or raise suspicion that he is engaged in acts in violation of his trust. The Commission reasoned:because it is foreseeable that the (employees) may deal with the same clientele, the Commission finds that whether the (employee) had oversight of the individual first as a (member of the local commission) or as a (State employee), a conflict of interest or its appearance is also foreseeable. A (State employee) who has dealt with an individual at (the local) level must recuse himself/herself from later involvement as a (State employee) in such case. Similarly, a (State employee) who first has dealt with an individual at the (local) level must recuse himself/herself from later involvement as a (State employee).
The Commission does not consider there to be a conflict of interest under §74 just because an item before the planning board is also under [State agency's] jurisdiction or destined for [State agency] consideration. A conflict would exist should the [State employee] be directly involved in or anticipate direct involvement in the project at the State or local level and then seek to become involved or is involved at the other level.
Conflict of Commitment
The Commission has often made it clear that State officers and employees engaged in non-State activities may pursue those activities only when there is no conflict, apparent or real, with the discharge of the employee's State responsibilities. Whenever an employee requests permission to engage in an outside activity, the agency must determine whether the time demands of that secondary activity are compatible with the time demands of the State job. If they are not, a conflict of commitment exists. A conflict of commitment, a "subset" of conflict of interest, is found when the external or other activities and undertakings of a State officer or employee are so substantial or demanding of the officer or employee's time and attention as to interfere, or appear to interfere, with the individual's responsibilities to the agency to which the individual is assigned or to the State as a whole. This decision is not for the Commission but the [State agency's] management to make with appropriate reference to internal personnel procedures and union contracts.
Nevertheless, it is possible that a conflict of commitment could rise to the level of a violation of §74 standards. Public Officers Law §74 requires that all State officers and employees involved in outside activities conduct such activities outside of their normal employing agency working hours and that such activities not interfere with their full-time responsibilities with the State. Therefore, all of the activities in which an [a specific State employee] is involved must be conducted in a manner that does not detract from his or her State responsibilities. If the [State agency] determines that the activities in which [the State employee] has become involved are interfering with his or her duties, the [State agency] may require that the employee resign from the organization in question. Our opinion as to the [State employee's] ability to serve on the planning board within the Public Officers Law does not create the requirement that the [State agency] grant approval for any time the employee requests to perform this function. The [State agency] must determine whether it can grant any particular employee time off to perform a planning board function. The [State employee's] commitment is first to his/her State employment and not to the local planning board.
Finally, the [State employee] must insure that no State resources of any type be used in furtherance of his planning board duties. This applies to telephones, office supplies, postage, photocopying machines or support staff assistance. It is also advisable that the [State agency] consult with appropriate [State agency] officials to determine the applicability of the [State agency's] own internal rules and regulations concerning outside activities and standards of conduct.
The Commission finds that there is no violation of the provisions of Public Officers Law §74 for [a State employee in a specific job title] to serve as a planning board member provided the following conditions are met:
The [State agency] employee must recuse himself or herself from any matter concerning any project in which he or she was previously involved when serving as a member of the planning board or the [State agency] and
The [State agency] employee must otherwise be able to fulfill the responsibilities of his or her State position, given the time demands of serving on a planning board; the Commission leaves the determination of that issue to the [State agency] on a case-by-case basis.
This opinion, until and unless amended or revoked, is binding on the Commission in subsequent proceedings 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 an opinion.
Joseph M. Bress, Chair
Barbara A. Black
Angelo A. Costanza
Donald A. Odell, Members
Dated: July 2, 1992
1. [Citation omitted.]
2. [Citation omitted.]
3. New York State Civil Service job specification.
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