|Advisory Opinion No. 94-3:||Application of the code of conduct of Public Officers Law §74 to the proposed outside activity of an employee of [a State agency].|
By letter dated October 19, 1993, the State Ethics Commission ("Commission") issued an informal advisory opinion that Public Officers Law §74 precluded the requesting individual from engaging in the proposed outside activity because it could appear that the requestingindividual would be influenced in his State position whether or not businesses with which he deals or wishes to deal purchase advertisements in the directory.
By letter dated October 23, 1993, the requesting individual requested a formal opinion and asked that the Commission take his lack of prior information about the law into account. In his letter, the requesting individual also inquired, in general terms, how the Public Officers Law would affect his future employment once he leaves State service.(1)
The Commission hereby reaffirms the conclusion reached in the informal opinion and addresses the new questions.
The requesting individual states he has a small home-based desktop publishing business and is considering assisting a local group, [ ], to produce a professional directory. The purpose of the directory is to help businesses, social service agencies and individuals find qualified [providers of service]. The requesting individual's responsibilities would include helping to write, lay out, design, and print the directory. He would also be involved in selling advertisements, the source of revenue to pay for the printing and distribution of the directory. The requesting individual's income would be a portion of the advertisement revenues. He states that the vast majority of the persons, agencies, or businesses he would approach for advertising he never has and never would have any dealings with through his employment at [the State agency]. In the "rare" case that he would approach an agency or business he deals with as a [State agency] counselor, he reports he would not address advertising inquiries to the person to whom he refers [State agency] clients, but instead to staff who would be unaware of his job as a [State agency] counselor.
The requesting individual also asks that the Commission take into consideration that he was not informed of the provisions of the Public Officers Law before accepting employment with [the State agency] and that he was only recently informed of the law's provisions.
No person who has served as a state officer or employee shall within a period of two years after the termination of such service or employment appear or practice before such state agency or receive compensation for any services rendered by such former officer or employee on behalf of any person, firm, corporation, or association in relation to any case, proceeding or application or other matter before such agency.
Public Officers Law §74(2) provides:
No officer or employee of a state agency . . . should have any interest, financial or otherwise, direct or indirect, or 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.
Public Officers Law §74(3) sets forth the standards which are to help covered employees meet the code of conduct. Of particular relevance to the question posed are:
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Public Officers Law §74, the State's code of conduct, deals with conduct that may result in actual conflicts of interest issues as well as conduct that gives the impression that a conflict may exist. As the Attorney General stated in a 1979 opinion applying Public Officers Law §74(2):
A public official must not only be innocent of any wrongdoing, but he must be alert at all times so that his acts and conduct give the public no cause for suspicion. He must give no appearance of a potential conflict between his official duties and personal activities even though an actual conflict is not present.
In furtherance of his proposed outside activity, the requesting individual expects to sell advertisements to agencies and businesses from which [the State agency] purchases services on his authorization for [the State agency] clients. Thus, the requestor could be soliciting business from providers to whom he has the power to refer business, in violation of a number of the standards of the code of ethics found in Public Officers Law §74(3). For example, the outside activity could jeopardize his "independence of judgment in the exercise of his official duties" if he were, in his [State agency] capacity, to refer clients to providers because they purchased advertising for the directory, or he hoped they would, or if he were to overlook others who did not purchase advertising in the directory or, such conduct could be so perceived. [Public Officers Law §74(3)(a)] The outside employment would thus also violate the prohibition against engaging "in [a] transaction as representative or agent of the state with [a] business entity in which he has an indirect financial interest that might reasonably tend to conflict with the proper discharge of his official duties." [Public Officers Law §74(3)(e)]
His pledge to take care in soliciting advertising by interacting with someone other than the individual(s) with whom he interacts in his [State agency] role would not lessen the Commission's concerns. Assuming he could guarantee he would always contact the appropriate person, the distinction would be lost on most observers. The Commission rejects the option of prohibiting the individual from soliciting advertising only from entities that currently receive [State agency] business; such a rule could influence, or appear to influence, the requestor to act differently in his [State agency] capacity due to his outside activity. Thus, the requesting individual is prohibited from soliciting advertising from entities receiving [State agency] business or that potentially could be conducting business with the agency.
In sum, the outside activity would make it difficult, if not impossible, for the requestor 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." [Public Officers Law §74(3)(h)] The act of soliciting business from the very class of entities with which he deals in his State position and upon which he has the official power to bestow financial benefits in the form of State business is a formula for creating either actual or apparent conflicts of interest.
The requesting individual also poses several hypothetical questions concerning outside employment as follows: whether he may obtain a part-time job at a fast food franchise to which [the State agency] provides funds to train [its clients] and whether he may accept directory advertising from an entity which he later learns is a [State agency] provider. In response to the first inquiry, Public Officers Law §74 would prohibit the requesting individual from obtaining employment at the fast food franchise. The second question, we believe, is answered by the earlier discussion of the requestor's proposed involvement in a directory.
Whether the requesting individual may engage in other outside activities depends upon the nexus between his responsibilities for [the State agency] and the proposed activity. The Commission may approve a different outside activity for the requesting individual that does not involve entities that conduct business with or which are regulated by [the State agency]. That decision can be made only after a consideration of all relevant factors which the Commission encourages the individual to present to it.
The requesting individual has posed a generic inquiry concerning application of the post-employment restrictions of Public Officers Law §73(8) after he leaves State service. Pursuant to Public Officers Law §73(8), the requesting individual may not appear, practice and/or render services for compensation in any matter before [his former State agency] for the two years following his separation from State service. The requesting individual should be aware that the Commission has consistently interpreted the word "appear" broadly. For example, the requesting individual could not submit or prepare a funding application to [the State agency] or appear at the agency on behalf of a client. The Commission is ready to respond to any specific inquiries of the requesting individual in this regard.
The requesting individual has asked that the Commission take into account that he was not told of any of the provisions of the Public Officers Law when he entered State service and that he was only recently made aware of the law's provisions. The Commission has consistently held that it is the obligation of covered State officers and employees to familiarize themselves with their obligations under the Public Officers Law.
This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding 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 opinion or related supporting documentation.
Joseph M. Bress, Chair
Barbara A. Black
Robert E. Eggenschiller
Donald A. Odell, Members
Dated: February 25, 1994
1. The requesting individual's post-employment inquiry was not part of his original request.
2. 1979 Op. Atty. Gen. 66.