|Advisory Opinion No. 95-30:||Application of Public Officers Law §§73(4)(a) and 74 to a State employee's spouse competitively bidding on a contract prepared and reviewed by the employee's unit at the State agency.|
The following advisory opinion is issued in response to an inquiry from a state agency as to whether the spouse of a non-policymaking  employee may competitively bid for an [agency] contract where the purchase recommendations and specifications are prepared and reviewed by the employee's unit at the agency but the employee is completely removed from all aspects of the purchase and the contract.
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 the employee's spouse may submit a bid without a violation of Public Officers Law §73(4)(a) or §74 as long as the contract is awarded after public notice and competitive bidding and the employee has no involvement with the contract or the establishment of the criteria for the bid products.
The requesting individual has informed the Commission that his inquiry concerns an [agency] employee who is an interior designer for the Environmental Design Unit at the agency's central office. Her position has not been designated as policymaking. As part of her official duties, she performs work on [agency] construction and renovation projects, including interior design, lighting, wall coverings, window treatments, floor coverings and furnishings. The employee's spouse is employed as a sales representative by a carpet manufacturer. Although, to date, her spouse has not bid on any [agency] projects, he would like to submit bids, as [the state agency] is one of the largest purchasers of carpeting among the State agencies.
The agency is concerned that there may be the appearance of a conflict of interest if the spouse were to bid for a contract to provide carpeting to the agency. Therefore, it is prepared to insulate the employee in her official duties from all aspects of carpet selection and review. Carpet specifications would be prepared by [the agency's] architects, and recommendations with regard to carpeting would be obtained from another interior designer on staff.
Carpet contracts are awarded by the agency after public notice in the State's contract reporter and competitive bidding. The requesting individual asks whether, under these circumstances, the employee's spouse may bid for the agency's carpeting contracts.
Public Officers Law §73(4)(a) provides:
No . . . state officer or employee . . . shall (i) sell any goods or services having a value in excess of twenty-five dollars to any state agency . . . unless such goods or services are provided pursuant to an award or contract let after public notice and competitive bidding.
The Code of Ethical Conduct contained in Public Officers Law §74(2) sets forth 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 official 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:
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Public Officers Law §73(4)(a) prohibits State officers or employees from selling goods or services in excess of $25 to any State agency unless there is public notice and competitive bidding. In Advisory Opinion No. 92-2, the Commission held that the provisions of this section do not prohibit a State employee from bidding competitively on a contract with his agency, as the exception to the prohibition is applicable in this situation. Since a State employee may bid on a competitively let contract to be awarded by her agency, logic dictates that her spouse should also be able to bid on such a contract.
If the situation here were identical to that presented in Advisory Opinion No. 92-2, the inquiry would be at an end. However, in that opinion, the State employee was seeking to bid on a contract to conduct training seminars that employees of his State agency might attend for a fee. The employee had no involvement with the agency's unit that authorized employees to attend such seminars. In the instant case, the employee in question is in the same unit that will write the carpet specifications and evaluate the bids. While this does not alter the result with regard to §73(4)(a), it presents undecided issues based on the restrictions contained in Public Officers Law §74.
This section precludes activities that have even the appearance of a conflict of interest; an actual conflict is not necessary for a violation of the law. Section 74(3)(c) prohibits State officers or employees from disclosing confidential or inside information or using that information for personal gain; paragraph (d) precludes them from using their official position to secure unwarranted privileges, influence or other favorable treatment for themselves or others; paragraphs (f) and (h) preclude them from giving the impression that unwarranted privileges or exemptions can be had.
The question presented here is whether §74 would be violated if an employee, or her spouse, were to bid on a competitively let contract that emanates from the unit in which she works. In the facts presented here, she would be completely screened from the bid process, as well as from consideration of the carpet specifications and recommendations prepared by her unit before a request for proposals is issued. She could, therefore, not actively use her influence in the contract award.
Because of the strictures of the competitive bidding process, the Commission also concludes that there would be no appearance of a conflict. Those strictures assure that the employee's colleagues cannot be influenced by their relationship with her in selecting the contractor, as the public will be aware of the award process and the basis for the award. Thus, the  employee could bid on the carpeting contract, and, by extension, so can her spouse.
The Commission concludes that the spouse of a non-policymaking employee may submit a bid on a contract emanating from the employee's unit without a violation of Public Officers Law §73(4)(a) or §74 as long as the contract is awarded after public notice and competitive bidding and the employee has no involvement with the contract or the establishment of the criteria for the bid products.
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