New York State
Ethics Commission


Advisory Opinion No. 95-10: Application of Public Officers Law §74 to OMRDD employees accompanying, as an outside activity, developmentally disabled individuals on a trip.

INTRODUCTION

The following advisory opinion is issued in response to an inquiry from [] and a parent of a developmentally disabled individual, concerning whether it is appropriate under the Public Officers Law for employees of the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD") to accompany, as an outside activity, individuals with developmental disabilities under the care of OMRDD on trips paid for by the parents of those individuals.

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 §74 prohibits OMRDD employees from being hired by parents of individuals with developmental disabilities under the care of OMRDD in the context of outside employment.

BACKGROUND

[The parent] is the mother of a developmentally disabled individual living at an [] OMRDD operated group home in Manhattan. The individual has severe multiple handicaps and is mentally retarded. She cannot take care of herself and requires constant assistance.

[The parent] had planned to pay for three OMRDD employees to accompany her daughter on a 9-10 day cruise to Puerto Rico and the Caribbean. Due to her daughter's condition, trained staff would have been needed to care for her even if relatives had accompanied the family. [The parent] was told by OMRDD officials that, based on precedent set by the Commission, OMRDD employees could not accompany her daughter.

OMRDD officials have historically prohibited agency employees from participating in overnight trips where the parents of a developmentally disabled individual assumed the employee's travel expenses. While expressing their concerns about whether such an arrangement would violate the gift provision of Public Officers Law §73(5), OMRDD officials have also expressed other concerns, such as the agency's potential liability during the trip and the provision of overtime to participating employees.(1)

As a result of OMRDD's refusal to grant permission for its employees to participate in the cruise, [the parent] lost $300 due to the cancellation of the trip. She has asked that the Commission re-examine its policy. This opinion sets forth the principles that govern in these situations.

APPLICABLE STATUTE

Public Officers Law §74 sets forth the Code of Ethics for State officers and employees. Section 74(2) contains the rule with respect to conflicts of interest:
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.

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. Of relevance to this inquiry are the following:

(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.

. . . .

(d) No officer or employee of a state agency . . . should use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others.

. . . .

(f) An officer or employee of a state agency . . . should not by his conduct give reasonable basis for the impression that any person can improperly influence him or unduly enjoy his favor in the performance of his official duties, or that he is affected by the kinship, rank, position or influence of any party or person.

. . . .

(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.

. . . .

DISCUSSION

In assessing whether a State employee may engage in an outside employment activity in conformity with Public Officers Law §74, the Commission considers several factors: the employee's duties on behalf of the agency, the relationship of the agency and the employee to the outside employer, whether the employee would be in a position to use his or her position to secure unwarranted privileges for the employer, or whether the employment would impair the employee's independence of judgment in the exercise of official duties [see Public Officers Law §74(3)(a), (b), (c) and (d)].

In cases in which the Commission has been asked to approve, pursuant to the Commission's regulations at 19 NYCRR Part 932, the outside employment of State employees engaging in clinical private practices, it has consistently held that Public Officers Law §74 prohibits such employees from treating in their private practices individuals whom they treat as part of their official State duties. The statute prohibits State employees from being perceived as using their State jobs for private gain.

In the instant case, the public could reasonably perceive that the children of parents hiring OMRDD employees and paying for a trip would receive preferential treatment from the employees in the group home in which they reside. The public could perceive that the employees, having receiving benefits from the parents, have received private gain by virtue of their State positions, thereby violating the standards of the Code of Ethics. Thus, employees of OMRDD may not be hired by the parents of developmentally disabled individuals outside of the performance of their public duties.

While the Commission sympathizes with [the parent] and other parents of developmentally disabled children, qualified private sector individuals, who are not OMRDD employees, could be retained to care for their children on trips.

CONCLUSION

The Commission concludes that Public Officers Law §74 prohibits OMRDD employees from being hired by parents of individuals with developmental disabilities under the care of OMRDD in the context of outside employment.

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,
Robert E. Eggenschiller,
Donald A. Odell, Members

Dated: March 7, 1995


Endnotes

1. According to OMRDD, federal law labor law would prohibit OMRDD employees from volunteering their time to perform services for which they are paid to perform on behalf of the agency.



URL: http://www.nysl.nysed.gov/edocs/ethics/95-10.htm