New York State
Ethics Commission


Advisory Opinion No. 92-21: Amendment of Advisory Opinion No. 91-1, regarding the application of Public Officers Law §§73 and 74 to graduate assistants and teaching assistants at the State University of New York.

In Advisory Opinion No. 90-8, dated May 10, 1990, the State Ethics Commission ("Commission") suspended application of the two-year bar of the "revolving door" provision of Public Officers Law §73(8) to students in part because the Public Employment Relations Board ("PERB") had not yet reached a final decision whether graduate assistants ("GAs") and teaching assistants ("TAs") at the State University of New York ("SUNY") are employees for purposes of the Taylor Law.(1) On September 13, 1990, in Advisory Opinion No. 90-20, the Commission extended its suspension of the two-year bar of §73(8) until January 15, 1991.

In Advisory Opinion No. 91-1, dated January 10, 1991, the Commission determined that students as defined therein are not "State officers or employees" for the purposes of Public Officers Law §73 and are therefore not subject to either the two-year or the lifetime post-employment restrictions in Public Officers Law §73 or to §74. In that opinion, the Commission reiterated its position that, should PERB reverse the determination of its Director that GAs and TAs are not employees under the Taylor Law, the Commission might revisit the issue.(2)

On October 8, 1991, PERB issued its final order concerning GAs and TAs at SUNY, concluding that these individuals are regular, part-time employees entitled to coverage under the Taylor Law.(3) The Board cited several bases for its reversal, including the absence of an explicit student exclusion in the Taylor Law's broad definition of "public employee," the absence of any statutory provisions which would indicate a general legislative intent to exclude the GAs and TAs, experience in other jurisdictions, and a belief that the policies of the Taylor Law are best carried out by a finding that the GAs and TAs hold employment covered under the Taylor Law.

Following PERB's determination, SUNY commenced an Article 78 proceeding alleging inter alia that PERB's determination was "arbitrary and capricious, unreasonable, an abuse of discretion and not supported by substantial evidence."(4) On July 23, 1992, the Appellate Division of the New York State Supreme Court upheld PERB's determination that GAs and TAs are public employees. SUNY has informed the Commission that it will not appeal the court decision.

The broad definition of the term "state officer or employee" in Public Officers Law §73 provides no basis for a conclusion contrary to PERB's interpretation of the Taylor Law's definition of "public employee" which was upheld by the Appellate Division. Based upon the foregoing, the Commission finds that those students at SUNY who hold State-funded positions as GAs or TAs are "State employees" covered by Public Officers Law §§73 and 74.(5) Such GAs and TAs who regularly work for the State 15 to 20 hours per week throughout the academic year are, by virtue of the PERB and Appellate Division decisions, regular, part-time employees and are covered fully under the provisions of the Taylor Law, entitled to benefits and to be represented by a negotiating representative and to join an employee organization for the purposes of negotiation and representation.

The Commission notes that its decision reaches only the GAs and TAs at SUNY described in and affected by the PERB decision.

Conclusion

The Commission believes that it is unlikely that the Legislature intended this category of students to be covered by Public Officers Law §§73 and 74. Unlike traditional State employment, the "short and intermittent" employment status of certain GAs and TAs does not seem likely to provide the same opportunities to develop contacts and associations that can be capitalized on later for private gain that Public Officers Law §73(8) was enacted to prevent. However, in light of the ruling by the Appellate Division, the Commission must conclude that, from the date of this Advisory Opinion, GAs and TAs at SUNY are "State employees" for the purposes of Public Officers Law §§73 and 74 and are fully subject to those provisions. Public Officers Law §73(8) will apply to students who are graduate assistants or teaching assistants at SUNY who hold State-funded positions, are covered under the provisions of the Taylor Law, and who terminate State service on or after the date of this opinion.

This opinion, until and unless amended or revoked, shall be binding on the Commission in any subsequent proceeding.

All concur:

Joseph M. Bress, Chair

Barbara A. Black
Angelo A. Costanza
Robert E. Eggenschiller
Donald A. Odell, Members


Dated: October 26, 1992


Endnotes

1. Advisory Opinion No. 90-8 provides, on page 7 in footnote 5, the following statement of the Commission regarding the pendency of this determination:

See In the Matter of Communications Workers of America/Graduate Students Employees Union, AFL-CIO and State of New York and United University Professions, 20 PERB 4063 (1987). The Director's determination, issued September 3, 1987, has been appealed to the Public Employment Relations Board which has not yet issued an opinion. If the Board were to reverse the determination of the Director that graduate assistants and teaching assistants were not employees under the Taylor Law, the Commission would be constrained to find that they are also covered by §73(8) of the Public Officers Law.

2. See Advisory Opinion No. 91-1, p. 9 (footnote 14).

3. See Communications Workers of America/Graduate Student Employees Union, AFL-CIO v. State of New York (State University of New York), 24 PERB 3035 (1991) issued by the State of New York Public Employment Relations Board on October 8, 1991, reversing the finding of the Director. PERB notes that about 15% of approximately 27,000 graduate students in the SUNY system are GAs or TAs. As such, they receive a stipend and/or a tuition waiver and perform a maximum of 20 hours/week service.

4. See In the Matter of State of New York (State University of New York) v. New York State Public Employment Relations Board, 586 N.Y.S.2d 662.

5. As State employees, GAs and TAs would also be covered by Public Officers Law §73-a. However, the students described and affected by the PERB decision do not receive an annual compensation in excess of the filing rate (i.e., $53,171) and would likely not be designated by SUNY as holding policy-making positions; therefore, they would not file an annual statement of financial disclosure.


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