|Advisory Opinion No. 95-29:||Application of Public Officers Law §74 to a State employee serving on the board of an industrial development authority.|
The following advisory opinion is issued in response to an inquiry from a state employee as to whether it is permissible for him, under Public Officers Law §74, to serve as a board member of the  Industrial Development Agency ("IDA").
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 does not prohibit the requesting individual from serving as a board member of the IDA, provided that he recuse himself, in his State position, from matters concerning IDAs, and that he disclose his State position to the IDA board and recuse himself on any State regulatory matter that comes before the board.
The question presented to the Commission was first presented as a request for an informal opinion submitted by an Assistant Counsel at [the state agency] on behalf of the requesting individual. On August 21, 1995, an informal opinion was issued by the Commission. The requesting individual, on his own behalf, now requests a formal advisory opinion.
The requesting individual, will be responsible for legal staff development and supervision, as well as day-to-day management activities. He will also do substantive work on legislation and regulations sent to [the state agency] by various State entities. Such substantive work will include making decisions regarding which regulations or regulatory schemes are candidates for regulatory reform. He will report directly to the Counsel and have the authority to act on the Counsel's behalf when necessary.
The requesting individual intends to continue his service on the board of the IDA. Periodically, [the state agency] will review regulations that directly affect IDAs.
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.
The rule of §74(2) is further explained and defined by standards found in Public Officers Law §74(3). These standards attempt to assure public confidence in State officers and employees as they discharge their official duties. Standards relevant to the present inquiry include 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.
(b) No officer or employee of a state agency . . . should accept employment or engage in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position or authority.
(c) No officer or employee of a state agency . . . should disclose confidential information acquired by him in the course of official duties nor use such information to further his personal interests.
. . . .
(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 . . .
. . . .
(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 addresses not only actual conflicts of interests but also conduct that gives the impression that a conflict exists. The Commission has held that §74 prohibits a State officer or employee from engaging in an outside activity over which the individual has substantial regulatory or enforcement responsibility. See Advisory Opinion Nos. 90-23 and 92-12. In other cases, the Commission has permitted State employees to engage in outside activities provided there was disclosure and recusal in appropriate circumstances. See Advisory Opinion No. 95-9. However, if a State employee must recuse himself or herself in a State position so frequently so as to limit the employee's ability to perform the State job, a conflict is presented that precludes the activity.
For example, in Advisory Opinion No. 92-16, the Commission held that a leasing agent with the New York State Office of General Services ("OGS") could not serve as a member of the city council for a locality in the geographical area over which he has responsibility for lease negotiations. The Commission concluded that given the broad scope of responsibilities of members of the city council, the leasing agent could not fulfill his responsibilities both as a State employee and as a council member without a conflict of interest.
In contrast, the Commission permitted the same individual to serve on a local school board, as his duties for the State were not nearly as intertwined with the public he would serve and the duties he would perform as a school board member. The Commission held in that situation, unlike his service as a city council member, recusal was a viable option, as there would be few issues that would arise in his OGS employment that would be of concern to the particular school district.
Under the circumstances presented here, the Commission anticipates that there will not be an inordinate number of regulatory issues before [the state agency] that directly affect IDAs. The requesting individual's responsibilities are sufficiently broad and varied so as to make it unlikely that IDA related matters will be a substantial part of its overall workload. Therefore, the requesting individual may continue to serve on the IDA board. However, he should, in his State position, recuse himself from consideration of matters concerning IDAs. In addition, to avoid even the appearance of a conflict of interest, he should, at an IDA meeting, disclose his State position to his colleagues and the public, and recuse himself on any State regulatory matters that come before the IDA board. These steps will serve to insure that the requesting individual remains in compliance with Public Officers Law §74.
The Commission concludes that Public Officers Law §74 does not prohibit the requesting individual from serving as a board member of the IDA, provided that he recuse himself, in his State position, from matters concerning IDAs, and that he disclose his State position to the IDA board and recuse himself on any State regulatory matter that comes before the board.
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.
Joseph M. Bress, Chair
Robert E. Eggenschiller,
Donald A. Odell, Members
Dated: October 2, 1995