|Advisory Opinion No. 95-25:||Application of the code of conduct of Public Officers Law §74 to the proposed outside activity of certain attorneys at the Department of Environmental Conservation.|
The following advisory opinion is issued in response to a request by the ethics officer at the New York State Department of Environmental Conservation ("DEC") concerning whether the Public Officers Law prohibits non-policymaking DEC attorneys, as an outside activity, from contributing chapters to the "New York Environmental Law Series," a practice guide for lawyers whose work involves New York environmental law matters, for compensation.
The Commission hereby concludes that, with one exception discussed in the opinion, Public Officers Law §74 prohibits the attorneys from receiving compensation for contributing such chapters, as they are related to their job responsibilities. However, they may write for the series without compensation.
Ann Hill DeBarbieri ("DeBarbieri"), DEC's ethics officer, has submitted this request on behalf of several DEC attorneys who have been approached by , a publishing firm in Alexandria, Virginia, to write one or more chapters for a "New York Environmental Law Series". The Series has been described by the publisher as a "complete practice tool for lawyers whose work involves New York environmental law issues." Each chapter is expected to be about 20 to 40 pages when printed in a double spaced manuscript format. Guidelines attached to the publisher's letter indicate that a broad range of environmental topics are to be covered. The series will provide coverage and analysis of New York statutes, regulations, executive orders and agency decisions, as well as federal and state court cases interpreting New York law. The primary market for the series will consist of (1) attorneys in private practice whose work involves New York environmental law issues; and (2) in-house counsel at New York corporations and other business entities. A secondary market will consist of corporate managers with environmental compliance responsibilities.
The proposed contract provides that the writer is being employed on a "work for hire" basis and irrevocably grants and assigns to the publisher all rights in the work. In return, the writer will receive a one time payment of $800 to $1,000 per chapter. The most chapters to be written by any one attorney is three.
DeBarbieri concedes that "Most of the attorneys under consideration by the publisher would be writing about the area of environmental law for which they are currently responsible as a Department employee." However, in at least one instance, an attorney would be writing about an area of environmental law for which he formerly had responsibility within DEC.
None of the attorneys approached has been designated as a policymaker.
The Commission's staff has provided DeBarbieri with Advisory Opinion No. 89-10 (discussed later). That opinion, which was requested by a policymaker, set forth nine factors that were considered by the Commission in reaching its conclusion as to whether the requesting individual could receive compensation for writing a book under the circumstances described therein. DeBarbieri stated that it is not clear as to whether these same factors would apply to employees not designated as policymakers. She requested that the Commission consider the drawing of a distinction between those who are policymakers and those who are not.
Public Officers Law §74(2) contains the following 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.
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:
. . . .
(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.
. . . .
Public Officers Law §74 deals with conduct that may result in actual conflicts of interest as well as conduct that could give the impression that a conflict exists. As the Attorney General stated in a 1979 opinion applying Public Officers Law §74(1):
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 Advisory Opinion No. 89-10, the Commission determined that Public Officers Law §74 does not preclude a State employee who is a policymaker from receiving royalties from the sale of a book which he co-authored as long as the following conditions were met:
The Commission has had occasion to apply these standards in a number of informal opinions. For example, the executive director of a State agency asked whether he might accept compensation from a private company to edit and revise an article about issues under his agency's jurisdiction. The Commission denied the director's request to engage in the outside activity, concluding that one of his official duties was to inform the public about the statute that would be the subject of the article. In another case, an employee who provided supplemental education services for youths was permitted to accept a position as a consultant reviewer of textbook material for a private educational publishing company. The Commission noted that the target audience for the books to be reviewed were adults enrolled in literacy programs, not youths, and the skills to be used were those of a reading specialist, an expertise acquired by the individual before her State employment.
DeBarbieri attempts to distinguish the present case from Advisory Opinion No. 89-10 by noting that the attorneys approached by the publishing firm are not policymakers. The law, however, makes no such distinction. Section 74 applies to all State officers and employees regardless of their position or designation.(2) In analyzing the application of §74 to a proposed outside activity, the Commission considers, among other things, whether the employee is in a position to secure unwarranted privileges by virtue of his or her State position or to use it for private gain; whether, by his or her actions, the employee would create suspicion among the public of improper influence; and whether he or she would be in violation of the public trust. The factors enumerated in Advisory Opinion No. 89-10 even though applied to a policymaker, greatly assist the Commission in making this determination.
DeBarbieri has conceded in her letter of request that the attorneys, with one exception, would be writing about the areas of law for which they are currently responsible. Since the subject matter of their written work is not unrelated to their job responsibilities, they do not meet the third condition cited in Advisory Opinion No. 89-10. Thus, they cannot contribute the chapter to the series for compensation. They could, however, contribute to the book without compensation, as there would be no private gain in their carrying out of their job responsibilities.
This conclusion would not apply in the one instance where the attorney is no longer assigned and does not anticipate reassignment to the particular program about which he or she is writing, as such writing would be unrelated to the attorney's job responsibilities. Receiving compensation for writing about areas of law no longer under the control of the particular attorney would be permissible as long as all of the other conditions set forth in Advisory Opinion No. 89-10 are met.
The Commission concludes that Public Officers Law §74 prohibits DEC attorneys who are not policymakers from receiving compensation for contributing chapters to the "New York Environmental Law Series" where the subject of the chapters they would be writing is related to their current job responsibilities. They may, however, write for the series without compensation. The factors considered by the Commission in determining issues such as those presented here are set forth in Advisory Opinion No. 89-10 and are applicable to both policymakers and non-policymakers.
This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding concerning any person who acted in good faith, unless material facts were omitted or misstated by the person making the request for opinion or related supporting documentation.
Joseph M. Bress, Chair
Robert E. Eggenschiller, Members
Donald A. Odell abstained.
Dated: July 18, 1995
1. 1979 Op. Atty. Gen. 66.
2. Although the law applies equally, policymakers, unlike non-policymakers, are required in certain instances to obtain prior approval of an outside activity. (See 19 NYCRR Part 932) The fact that prior approval for an outside activity of certain employees may not be required by Commission regulations does not relieve those individuals from adhering to Public Officers Law §74 in the conduct of outside activities which may have an impact on their employment.