|Advisory Opinion No. 96-6:||Application of Public Officers Law §74 to an employee of the Division of Housing and Community Renewal who wishes to appear as a tenants' representative in an administrative proceeding before his employing agency.|
The following advisory opinion is issued in response to an inquiry from [a senior official] for the Office of Rent Administration within the Division of Housing and Community Renewal ("DHCR"). He has asked whether [ ], a DHCR employee, may act as a tenants' representative in an appeal from an order of a Rent Administrator pending before the agency.
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 precludes such representation.
[The State employee] is a supervisor in a case processing unit [ ] which is within the Office of Rent Administration ("ORA") at DHCR. He has not been designated as serving in a policymaking position.
[The State employee] lives in a rent stabilized apartment in New York City that is subject to the laws and regulations administered by ORA. On [date], ORA, acting through its Owner Multiple Bureau, granted a major capital improvement increase to the owner of the building in which [the State employee] lives. As a result, the maximum legal regulated rents for all rent stabilized and rent controlled housing accommodations in the building will be increased on a per room basis. Some of the building's tenants, including [the State employee], have filed an appeal from the order of the Rent Administrator. Included within the appeal papers was a statement from [the State employee] indicating that he is the authorized representative for the tenants in the appeal proceeding.
The appeal will be processed by the Owner Multiple Bureau, which is separate from the [office] where [the State employee] is employed. However, [the requesting individual], who oversees both bureaus, will issue the order on the appeal.
The owner of the building has objected to [the State employee's] representation of the tenants, claiming that his role is inappropriate and constitutes an appearance of impropriety. Following this objection, [the requesting individual] requested this opinion from the Commission. The appeal has been placed on hold pending receipt of an opinion.
Section 74 contains the Code of Ethics. It is concerned with both actual conflicts of interest and the appearance of conflicts. The rule with respect to conflicts of interest, contained in §74(2), provides the following:
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 set forth in §74(3) which further explain and define the above-mentioned rule and which pertain to the present circumstances, include the following:
. . . .
. . . .
. . . .
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(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. . .
The question for the Commission is whether Public Officers Law §74 prohibits [the State employee], in his capacity as tenants' representative, from working on the appeal. In its analysis of this question, the Commission considers him as engaging in an activity outside of his State employment, and examines its precedents in this area. In assessing whether a State employee may engage in an outside activity in conformity with Public Officers Law §74, the Commission, in general, considers several factors: the employee's duties on behalf of the agency for which he or she works, the relationship of the agency and the employee to the proposed outside activity, whether the employee would be in a position to use his or her position to secure unwarranted privileges, and whether the outside activity would impair the employee's independence of judgment in the exercise of official duties [see Public Officers Law §74(3)(a), (b), (c) and (d)].
In Advisory Opinion No. 95-43, the Commission permitted an engineer employed by the Department of Environmental Conservation ("DEC") to assist an organization of which he is a member in applying for a permit from DEC to repair a dam.(2) The Commission based its decision on the fact that the engineer's responsibilities were sufficiently removed from the dam approval process so as to render the possibility of a conflict of interest minimal. The bureau in which the engineer worked, although within the same division as the bureau that would review the application to repair the dam, functioned independently of the latter. In essence, the two bureaus operated as separate units.
In the matter presently before the Commission, [the State employee] is a supervisor in one bureau [ ] but the appeal will be processed by another bureau, the Owner Multiple Bureau. Thus, at first glance, this matter appears to be similar to that presented in Advisory Opinion No. 95-43. However, there are critical differences. As noted, the tenants' appeal, although processed through the Owner Multiple Bureau, will result in an order of [a senior official] of ORA. Since [the State employee's] bureau is within ORA, the order will, in fact, be issued by an individual who has the authority to oversee his work. Such a situation creates, at least, the appearance of a conflict of interest in violation of §74. In addition, unlike the situation in Advisory Opinion No. 95-43, in which the DEC employee sought a permit from his agency, the proceeding before DHCR is adversarial in nature between the tenants and the owner of the apartment building.
[The State employee] cannot separate his representation of the tenants from his position at DHCR. In both capacities, he would have a relationship with [the senior official of] ORA. His position in ORA, serving under the decision maker in the appeal proceeding, may give him an unfair advantage. As a unit supervisor, he is likely to have access to the [senior official]. His adversary in the appeal will have no way of knowing whether [the State employee] ever took advantage of the employment relationship or spoke with the [senior official] about the appeal within the context of that relationship. This, by itself, gives reasonable basis for the impression that [the State employee] can improperly influence [the senior official], and it could raise suspicion that he may be engaged in acts in violation of his trust. Such a circumstance would place [the State employee] in violation of §74(3)(f) and (h), whether or not he, in fact, discusses the appeal with [the senior official]. Thus, he is precluded by §74 from representing the tenants on the appeal.
The Commission concludes that Public Officers Law §74 precludes [the State employee] from representing the tenants on the appeal.
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
Evans V. Brewster,
Angelo A. Costanza,
Robert E. Eggenschiller,
Donald A. Odell, Members
Dated: April 15, 1996
1. 1979 Op. Atty. Gen. 66.
2. Pursuant to Public Officers Law §73(12), the engineer was prohibited from communicating with DEC employees about the permit.