|Advisory Opinion No. 95-37:||Application of Public Officers Law §74 and Advisory Opinion No. 95-15 to an employee of the Office of Real Property Services on unpaid leave of absence.|
The following advisory opinion is issued in response to a request by [ ] by which he asks the State Ethics Commission ("Commission") to reconsider one of many questions it determined when it issued Advisory Opinion No. 95-15 in response to his previous request.
[The requesting individual] was an employee of the Office of Real Property Services ("ORPS") when he requested an advisory opinion regarding his expected future employment with [a large, regulated utility ("utility")]. Effective June 17, 1995, [the requesting individual] took an unpaid leave of absence from ORPS and, as he had anticipated, became an employee of [the utility]. He now requests reconsideration of that portion of Advisory Opinion No. 95-15 which held that he was barred by §74 of the Public Officers Law from continued involvement in the Real Property Taxation Administration Committee's ("RPTAC") Subcommittee on Utility Valuation ("Subcommittee"). ORPS has also written to the Commission and requested that [the requesting individual] be permitted to participate in the Subcommittee, stating that his service would be of great benefit to both ORPS and RPTAC.
Pursuant to the authority vested in it by Executive Law §94(15), the Commission, having reconsidered the matter, hereby affirms its previous opinion that [the requesting individual] is precluded by §74 of the Public Officers Law from service on the RPTAC Subcommittee.
While [the requesting individual] was employed by ORPS as a [ ], he sought and received an advisory opinion from the Commission addressing many questions which he had presented. On June 19, 1995, he accepted a position with [the utility], and was granted an unpaid leave of absence from ORPS for a period of six months, with the possibility of further extensions.
In his previous request for an opinion, [the requesting individual] stated that, while employed at ORPS, he had been an active member of the Subcommittee, and that he would like to maintain his involvement after he began as an employee of [the utility]. He stated that the Subcommittee consisted of approximately 36 members, and was a joint project of local assessors, county real property tax directors, ORPS staff and utility companies, including [the utility], working together with the goal of improving utility assessment practices and communication between the interested parties. The Subcommittee was preparing a white paper on issues of concern; for example, one proposal under the Subcommittee's consideration suggested transferring all utility valuation determinations from local assessors to ORPS.
In Advisory Opinion No. 95-15, the Commission determined that, should [the requesting individual] take a leave of absence from ORPS to take the [utility] position, he would remain a State employee covered by Public Officers Law §74, and that the provisions of this section would preclude him from representing [the utility] on the Subcommittee, as there would clearly be a violation for him to represent any viewpoint other than that of his employing State agency. [The requesting individual], as noted, has since taken a leave of absence.
He has now requested that the Commission reconsider this portion of its previous opinion, as the Subcommittee has requested him to rejoin. According to [the requesting individual], he has been approached by several members about rejoining the Subcommittee to assist with the process of completing the technical valuation writing and assuming the balance of the former duties that he performed to support the group. [The requesting individual] believes that the Subcommittee recognizes his technical expertise, his unbiased, open and fair approach to discussing issues, and his desire to work to see the group's issues through to resolution. It is his understanding that the request for him to rejoin has broad member support, and his return would be met favorably by all interested parties. He states that because [the utility] has other representation on the Subcommittee, his participation would be for the benefit of the entire group; it would not be to represent only the interests of [the utility], his current employer.
Ramón Rodriguez, Deputy Executive Director at ORPS, has written to the Commission, stating that [the requesting individual]'s return would ensure continuity in the Subcommittee's efforts as well as enabling the Subcommittee to draw, once again, upon one of its most valuable resources. Rodriguez's letter provides additional information regarding the history of the Subcommittee: in the Fall of 1992, RPTAC (a group of representatives of ORPS, County Directors of Real Property Tax Services, and the New York State Assessors Association) established the Subcommittee to study and report on the assessment of utility real property in New York State. As the Subcommittee proceeded, it became clear that the group would need the cooperation of and input from utility companies, and that its recommendations could not succeed without the involvement of the utilities. Utility representatives then became members of the Subcommittee to assist in what will be its final report and recommendations. [The requesting individual] began to participate as an ORPS resource person with unique skills and appraisal background. Rodriguez states that as the work of the Subcommittee evolved, [the requesting individual]'s unique skills and appraisal background made him an all but irreplaceable member.
According to Rodriguez, [the requesting individual]'s return would be of great benefit to both ORPS and RPTAC. Rodriguez states that this would not place [the utility] at any competitive advantage because it is already represented by another [utility] employee, who is [the requesting individual]'s supervisor.
Public Officers Law §74 contains the code of ethics for State officers and employees. The code of ethics, found in Public Officers Law §74, addresses both actual conflicts of interest and their appearance. Subdivision 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.
Standards which are contained in subdivision 3 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.
. . . .
(c) No officer or employee of a state agency . . . should disclose confidential information acquired by him in the course of his official duties nor use such information to further his personal interests.
(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.
(e) No officer or employee of a state agency . . . should engage in any transaction as representative or agent of the state with any business entity in which he has a direct or indirect financial interest that might reasonably tend to conflict with the proper discharge of his official duties.
(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.
. . . .
Since [the requesting individual] has not terminated his employment with the State, as he is currently on a leave of absence from ORPS, §74 is applicable to him. In Advisory Opinion No. 90-1, the Commission held that a State employee on leave without pay is still in State service for purposes of Public Officers Law §73, and remains in such service until he or she either terminates employment with the State or is terminated from such employment by appropriate State action. In Advisory Opinion No. 95-15, the Commission, following this precedent, held that the post-employment restrictions of subdivision 8 of §73, applicable to former State employees, would not apply to [the requesting individual] until his leave status is terminated, and that §74, as well as the other provisions of §73, would continue to apply to him until then. It stated that "[a]n employee on leave who has the benefit of a guaranteed return to his or her State position, together with such other benefits as the ability to compete in a promotional examination and to continue health insurance, should not be able to avoid the types of ethical constraints on engaging in various activities that are imposed on active State employees and former State employees".
The Commission went on to hold in Advisory Opinion No. 95-15 that [the requesting individual] could not serve on the Subcommittee when he became an employee of [the utility]. The opinion stated that "[t]here would clearly be a violation for him to represent any viewpoint other than that of his employing State agency".
In support of the argument that he should be permitted to return to the Subcommittee, both [the requesting individual] and ORPS point out that [the utility] is already represented on the Subcommittee by another individual. Therefore, they argue, his service would not be for the purpose of representing [the utility]' interests. In fact, ORPS argues that [the requesting individual]'s continued service would be consistent with its interests and those of the Subcommittee.
While the Commission understands that [the requesting individual] would attempt to serve in an unbiased, open and fair manner, it cannot ignore the fact that he would be serving on the Subcommittee while he is still a State employee and simultaneously employed and paid by [the utility].
As both of [the requesting individual]'s employers are members of the Subcommittee, the Commission believes that his service would give the appearance of a conflict of interest. As noted above, the provisions of §74 prohibit not only actual conflicts of interest, but also conduct which gives the appearance of a conflict. Paragraph (f) of §74 prohibits conduct which gives a reasonable basis for the impression that a State officer or employee is affected by the influence of any party or person. Paragraph (h) provides that a State officer or employee should pursue conduct which will not raise suspicion among the public that he or she is likely to be engaged in acts that are in violation of his or her public trust.
Although [the utility] would be represented on the Subcommittee by an individual other than [the requesting individual], the public would still have a reasonable basis for the impression that he could not separate his interests from those of [the utility]. Furthermore, since he is paid by [the utility], he would be perceived as being obligated to it even though he is not its official Subcommittee representative. Given [the requesting individual]'s State status as an employee on leave from ORPS, he continues to owe complete loyalty to the State. Since the Subcommittee includes both of his "employers," suspicion could be raised among the public that he is likely to be engaged in acts that are in violation of his public trust (§74[h]).(1)
The Commission affirms its previous conclusion that [the requesting individual] is precluded by §74 of the Public Officers Law from service on the RPTAC Subcommittee.
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
Angelo A. Costanza,
Robert E. Eggenschiller, Members
Dated: December 19, 1995
1. Further, if he were a former employee, the revolving door provision would bar him from serving on this Subcommittee. A leave without pay and private employment should not be a key to avoid the revolving door prohibitions. That result would permit an evasion of the §73(8) bar.