|Advisory Opinion No. 95-39:||Application of Public Officers Law §74 to an agency employee's involvement in grievance and disciplinary matters where the employee's spouse is a party or witness in the matter, or the matter arises from a unit under the spouse's responsibility.|
The following advisory opinion is issued in response to an inquiry from [ ], an employee of [ ], which is a facility of [a State agency]. He asks whether it is appropriate for [employee A], to be involved in grievance and disciplinary matters where [employee A's] spouse is [a senior-level employee] of the facility and some of the matters arise out of the units over which her spouse has responsibility, or involve her spouse as a party or a potential witness.
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, to avoid the appearance of a conflict of interest under Public Officers Law §74, [Employee A] must recuse herself from serving as management's representative as a reviewer on a contract or disciplinary grievance arising at the [State facility]. She may, however, represent the facility at a disciplinary arbitration without a violation of the Ethics Law.
This issue was first presented to the Commission by way of a complaint filed by [the requesting individual]. He stated that [employee A], was a management representative in grievances and disciplinary cases for [the State agency] at the [State facility] ,and that some of the cases in which she was involved arose out of units that fell within the responsibility of her husband, [ ], who is the facility's [a senior level employee].(1) In some cases, [the husband] could be a party or a potential witness.
In a grievance matter, an employee's complaint is first reviewed by the [State facility] director, or his or her designee, who sustains or denies the grievance. If the grievance is denied, [employee A], as a representative of [State agency]'s central office, conducts a review of the [State facility]'s action. After her review, she makes a recommendation that is reviewed by her supervisor. When a grievance arises out of a unit overseen by [employee A's husband] he may conduct the initial [State facility] review or he may be named as a party or be a potential witness to the actions giving rise to the grievance.
In a disciplinary matter, charges are pressed against a [State facility] employee by the head of the facility. [employee A]'s role is to get all the parties to the disciplinary matter together and attempt to work out a resolution. If no agreement is reached, the matter proceeds through additional steps and may eventually be resolved through binding arbitration, where [employee A] represents the facility director. [employee A]'s husband, in some cases, may be a witness.
Upon making inquiry after receiving the complaint, the Commission found that, as the facts were not clear, an enforcement action was not warranted. However, it decided to issue an informal opinion to make certain that [employee A] had appropriate guidance as to how to conduct herself in the future. In addition, [State agency] wrote to the Commission and asked to be kept advised, as the agency wished to make sure that there was compliance with the Public Officers Law. On May 26, 1995, the Commission issued an informal opinion to [the requesting individual], the complainant, with a copy to [employee A] and [State agency]. [the requesting individual] has now requested a formal advisory opinion, a request to which [State agency] has consented.
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:
. . . .
(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 applies to 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)(d) precludes State officers and employees from using their official position to secure unwarranted privileges, influence or other favorable treatment for themselves or others; paragraphs (f) and (h) of §74(3) preclude them from giving the impression that unwarranted privileges or exemptions can be had.
Where a State officer or employee is involved in his or her official capacity in a matter in which a relative has an interest, the Commission, in previous decisions, has required disclosure of the interest and relationship, and recusal on the part of the officer or employee. In Advisory Opinion No. 91-21, the Commission found that where an agency contract was awarded to the sibling of a senior manager of the agency, the manager, to avoid a Public Officers Law violation, should have no interest in the sibling's firm nor any role in the selection or oversight of the contract. In addition, the manager was required to disclose the relationship and recuse herself from any role within the agency. Similarly, in Advisory Opinion No. 92-11, the Commission found that there would be no Public Officers Law violation where a public authority retained a law firm in which one of its board members was a partner as long as the member disclosed his relationship and recused himself from any activity related to the selection of the firm or the firm's work. Following these earlier opinions, in Advisory Opinion No. 94-22, the Commission found no Public Officers Law violation where a State employee referred a firm owned by his former sister-in-law to his agency, as the employee received no compensation, had no personal or financial interest in the firm, disclosed the relationship and recused himself from any consideration of the contract or the services rendered under it.
Several opinions of the New York State Attorney General are in accord with the Commission's opinions requiring disclosure and recusal. In Informal Opinion No. 88-63, the Attorney General held that a county legislator should take no part in executive negotiating sessions involving a contract with the bargaining unit that included his wife's position. He was also required to avoid any deliberations or actions concerning the salary or the terms and conditions of employment of his wife in county government. The Attorney General stated: "[t]he husband/wife relationship may compromise the legislator's ability to make an impartial judgment and at least creates an appearance of impropriety that must be avoided." [See also Informal Opinion No. 94-32, in which the Attorney General opined that a county legislator should recuse himself from participating in matters affecting a non-for-profit corporation in which he is employed and where his wife is the director.]
With these governing principles, the Commission now examines the matter presented.
The facts in this case present two questions: (1) can [employee A] serve as management's representative as a reviewer on contract or disciplinary grievances arising at the [State facility] where her husband is [a senior level employee] and (2) can she represent the facility at disciplinary arbitrations.
As to acting as a reviewer of a contract or disciplinary grievance, [employee A] would be reviewing the actions of a facility where her husband may have played a role in the circumstances leading to a grievance, or could play a role in resolving the grievance. When a grievance is reviewed, the subject employee should have a reasonable belief that the reviewer will not be unfairly influenced in reviewing the grievance, even though the review is by management. More than a perception of unfairness would result if the reviewer of the grievance is a spouse of a high ranking official at the facility. In this case, the perception would be that [employee A] cannot fairly sit in review of her husband's actions or the actions of management at a facility where her husband can be influential in the actions management takes. Therefore, to avoid actual impropriety or the appearance of impropriety, [employee A] must recuse herself from reviewing grievance or discipline appeals at the [State facility] as long as her husband holds a high ranking position in management.
As to representing the facility at a disciplinary arbitration, the conclusion is different. The disciplinary arbitration, for want of a better term, is an adversarial proceeding. The parties are represented by advocates who present their positions and witnesses in a manner to seek to influence the decision of an impartial arbitrator. In that situation, it is expected that [employee A] will represent the interests of the facility and its management. Her role is not to review and resolve a grievance, where the grievant hopes for an independent management review. Therefore, it is neither a conflict of interest nor an appearance of a conflict for her to represent the facility in which her husband works in a proceeding before an independent arbitrator. The process is adversarial and the parties' representatives are expected to be partisan.
To avoid an appearance of a conflict of interest under Public Officers Law §74, [employee A] must recuse herself from serving as management's representative as a reviewer on a contract or disciplinary grievance arising at the [State facility]. She may, however, represent the facility at a disciplinary arbitration without a violation of the Ethics Law.
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
Angelo A. Costanza,
Robert E. Eggenschiller, Members
Dated: December 19, 1995
1. According to [the State agency], [employee A] also is involved in grievances and disciplinary matters that arise out of [State agency] facilities other than the [State facility in question]. There is no issue as to her ability to be involved in those matters.