New York State
Ethics Commission


Advisory Opinion No. 93-1: Whether members of county alcoholic beverage control boards are State officers subject to the provisions of Public Officers Law §§73, 73-a and 74.

Introduction

The following advisory opinion is issued in response to a request from [ ] whether members of county alcoholic beverage control boards are subject to the provisions of Public Officers Law §§73, 73-a and 74, and if so, whether Public Officers Law §73 prohibits a candidate for a county board who is an attorney with an active workers' compensation practice from continuing such practice if appointed to the board.

Pursuant to its authority under Executive Law §94(15), the State Ethics Commission ("Commission") hereby renders its opinion that the members of the county alcoholic beverage control boards are not State officers subject to Public Officers Law §§73, 73-a and 74 and, therefore, the provisions of Public Officers Law §§73 and 74 would not prohibit the candidate from practicing before the workers' compensation board.

Background and Relevant Statutes

Alcoholic Beverage Control Law §30 provides that in each county of the State, except in the counties comprising New York City, there shall be a county alcohol beverage control board ("county board") to consist of two members, each of whom must be a citizen and resident of the county for which he or she is appointed. One member of each county board is to be appointed by the New York State Liquor Authority ("SLA")(1) and the other member shall be appointed by either the chair of the board of supervisors of the county or the county executive.

Pursuant to Alcoholic Beverage Control Law §30, the New York City alcohol beverage control board ("NYC board") shall consist of four members. Alcoholic Beverage Control Law §34 provides that two of the members of the NYC board shall be appointed by the SLA and that the other two members shall be appointed by the mayor of New York City.

Alcoholic Beverage Control Law §41 provides that any member or employee of a county board may be removed for cause by the SLA after being given an opportunity to be heard. Pursuant to Alcoholic Beverage Control Law §40, members and employees of the county boards are subject to the same restrictions on having an interest in any entity regulated by the SLA as are members and employees of the State agency.(2)

The county boards have the following duties as prescribed by Alcoholic Beverage Control Law §43:

  1. to recommend to the SLA the issuance or refusal of licenses to sell alcoholic beverages at retail;

  2. to recommend to the SLA the revocation of such licenses;

  3. to further restrict the hours from those times set in State law during which alcoholic beverages may be sold at retail (although the NYC board does not have this power); and

  4. to examine under oath any applicant or holder of a license to sell alcoholic beverages, to hear testimony, and to issue subpoenas for such purpose.

The county boards do not have the authority to issue rules and regulations.

Alcoholic Beverage Control Law §38 states that members of county boards (other than in New York City) "shall serve without salary" but are "allowed their actual and necessary expenses. . . Such fees shall be made payable in equal semi-monthly installments." Legislation enacted in 1991(3) provides in relevant part:

. . . there shall be paid from the personal service-regular portion of the appropriation made for the support of the local alcoholic beverage control boards program . . . the salaries of members of the New York City board at $12,598 per annum and also annual fees for each county board member according to the following: in any county containing one or more cities of a population of 300,000 or more, and in the counties of Nassau and Westchester, $3,721, in any county containing one or more cities with a population of less than 300,000 and more than 50,000 except in the counties of Nassau and Westchester, $2,399, and in all other counties, $1,955. (emphasis added)

This law distinguishes between the NYC board whose members receive a "salary" and the other county boards whose members receive a "fee." According to the SLA, this distinction has no significance.

The members of the county boards receive the bi-weekly "salary" or "fee" from the State treasury through checks issued by the SLA. For example, members "in all other [than New York City, Westchester, etc.,] counties" receive their annual "fee" of $1,955 in 26 equal installments during the calendar year.

Members of the county and NYC boards are not statutorily covered by the defense and indemnification provisions of Public Officers Law §17. The county and NYC boards are not "State agencies" for the purposes of the State Administrative Procedure Act and do not issue regulations pursuant to SAPA. County and NYC board members are not subject to time and attendance rules as are State employees. All members must join the State retirement system and are entitled to Management/Confidential life insurance, for which they must pay the full premium.

All county and NYC board members who have served less than twelve years are considered less than half-time employees by the Department of Civil Service and the Governor's Office of Employee Relations and, therefore, are not eligible for any State health insurance benefits. Members of the boards who have served more than twelve years are eligible for health insurance coverage. According to the SLA, approximately 10 out of the 124 board members receive State health insurance benefits.

Both Public Officers Law §73(1)(g) and §74(1) define the term "state agency" to mean:

any state department, or division, board, commission, or bureau of any state department. . . .

Discussion

The initial question is whether the county boards are "State boards" within the definition of "State agency" for purposes of Public Officers Law §§73, 73-a and 74. In Advisory Opinion No. 90-2 concerning the application of Public Officers Law §§73 and 73-a to the members of the board of trustees of the Interest on Lawyer Account Fund ("IOLA"), the Commission determined that IOLA was a covered State agency because its members are appointed by the Governor and "the function of the [IOLA] Board to dispense interest earned in the IOLA account to appropriate legal service organizations in the State is a public function." Further, State Finance Law §97-v(3)(d) defines IOLA members as employees of the State for purposes of the defense and indemnification provisions of Public Officers Law §17, and that the IOLA Board has the power to issue rules and regulations and must act in accordance with Article 2 of the State Administrative Procedure Act ("SAPA"), as do other State agencies.

While the members of the county and NYC ABC boards clearly perform a "public" function by recommending to the SLA, among other things, whether liquor licenses should be issued or revoked, the fact remains that the county and NYC boards only make recommendations to the SLA that affect local licensees. It is the SLA that has authority to issue, suspend and revoke licenses. Members of the county boards are not statutorily covered by the defense and indemnification provisions of Public Officers Law §17. The boards, unlike the IOLA board, are not considered State agencies under SAPA and, therefore, do not issue rules and regulations in accordance with its provisions. There are no gubernatorial appointees on the county or NYC boards.

The Commission's determination that county and NYC ABC boards are not State agencies is consistent with prior formal opinions of the Attorney General which found that county ABC board members are not subject to Public Officers Law §74.(4) The 1955 opinion relied upon an earlier opinion on the same issue(5) in which the Attorney General stated:

The fact that such local boards have jurisdiction only within their respective counties and only within the City of New York in the case of the New York City board, that members are required to be residents of the county (or City of New York) for which they are appointed, and that they are appointed on a local basis, is certainly inconsistent with the theory that members of such boards are State officers or employees.

While there exist certain factors that might make it appear that the county and NYC ABC boards are State agencies (the members are subject to the same restrictions on outside interests in liquor establishments as members and employees of the SLA, the members of the county and NYC boards receive a "fee" or "salary" through a State appropriation, and that they receive their "fee" or "salary" by State check), the Commission has weighed these factors against those that support the conclusion that they are not covered State agencies. The fact remains that the county and NYC ABC boards have no gubernatorial appointees and perform a local rather than a State function.

Under these circumstances, the Commission finds that the county and NYC ABC boards are not State boards nor are their members State officers or employees for purposes of Public Officers Law §§73, 73-a and 74. Therefore, the candidate for the county board may engage in the practice of law before the workers' compensation board.

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

Concurring:

Joseph M. Bress, Chair

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

Robert E. Eggenschiller, Member, dissents.

Dated: December 15, 1992


Endnotes

1. The SLA is established under Alcoholic Beverage Control Law §10 as a State agency within the executive department. The five members of the SLA are appointed by the Governor.

2. See Alcoholic Beverage Control Law §16, which prohibits, for example, any officer or employee of the SLA from having a proprietary interest or holding any loan, mortgage or lien on premises where alcoholic beverages are manufactured or sold; from receiving any commission or profit from any applicant for a license or permit, or from holding any other public office in the State, except upon permission from the SLA.

3. Laws of 1991, chapter 409, §3, effective April 1, 1991.

4. See 1955 Opinion of the Attorney General 284.

5. 1953 Opinion of the Attorney General 111.



URL: http://www.nysl.nysed.gov/edocs/ethics/93-01.htm