|Advisory Opinion No. 96-13:||Application of Public Officers Law §74 to a member of a State professional board serving in a leadership position with a State professional organization.|
The following advisory opinion is issued in response to an inquiry from [Requestor A], Assistant Counsel with the New York State Education Department ("SED"), Office of Professional Responsibility, and [Requestor B], President of the New York State [professional association]. They have asked whether there would be a conflict of interest under the Public Officers Law if [a professional], a member of the State Board for [the profession], were to continue to serve while he is the president elect and president of the [ ] Division of [the professional association].
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 SED's policy of prohibiting Board members from concurrently serving in leadership and advocacy positions with professional associations is consistent with the Code of Ethics of Public Officers Law §74. The determination of whether [the professional] occupies such a position in [the professional association] in violation of this policy rests with SED and the Regents.
Education Law [ ] provides that there shall be a State Board for [the profession], the members of which are to be appointed by the Board of Regents upon the recommendation of the Commissioner of Education. The Board is to assist the Regents and SED on matters of professional licensing and professional conduct. It is composed of not less than eleven licensed [professionals].
All members of the Board receive a certificate of appointment and must file a constitutional oath of office with the Secretary of State. They receive up to one hundred dollars for each day devoted to board work. See Education Law [ ]. Members are considered officers of SED, and are covered by the provisions of Public Officers Law §74. See Advisory Opinion No. 91-8.
Although the Board, like the State's other professional boards, does not make final decisions concerning matters of policy or administrative practice, it is integrally involved in carrying out the work necessary to implement the Regents' policy and SED's goals.
According to [Requestor A], SED has had a long standing policy that members of the State's professional boards should not simultaneously hold leadership or advocacy positions in professional organizations. In July 1992, the Advisory Council of State Board Chairs voted to formally approve this policy, effective January 1, 1993. It adopted a resolution providing that members of professional boards are prohibited
from serving in any elected or appointed office in professional association/society, where such office is a leadership position and/or requires the person to advocate and express support publicly for positions of the professional organization (e.g. President, President-Elect, Treasurer, Secretary, etc.). This criteria of leadership/advocacy shall apply to all levels of professional organization, local state and national; recognizing that the majority of applicable situations will involve state level organizations.
Any Board member who becomes disqualified by virtue of this resolution is to be granted a leave of absence for the period of disqualification.
[The professional] is currently a member of the State Board for [the profession]. He recently commenced a two year term beginning as president elect and concluding as president of the [ ] Division of [the professional association], a professional organization representing approximately 3,000 licensed [professionals] in the State. The organization is dedicated to advancing the ethical standards of professional [ ] practice and enhancing the knowledge of [the profession] among professionals and the public.
[The professional association] is governed by a Council of Representatives ("Council"), a policy-setting body with authority over all of its affairs and funds. The Council is composed of the Executive Committee, representatives of regional associations, and representatives of the organization's divisions. [The professional association] has 12 divisions, with each composed of 50 or more members. These divisions are interest groups to enhance a sharing of perspectives, develop appropriate continuing education experiences, and explore specific issues, both theoretical and practical. [The professional] has been elected as an officer of one of these divisions -- the [ ] Division.(1)
According to [Requestor A], the president of the [ ] Division does not necessarily sit on the Council. However, he argues that it is "both a leadership position and a position that drives policy in the Association." He states that division presidents "take public positions on issues, negotiate with State leaders, and convey the agenda of the division to the Association and to the public." It is his position that [the professional] cannot, at the same time, be a member of the Board and hold his position in the Association.
[Requestor B], on the other hand, contends that while division presidents may be designated as Council members, "their position does not render them de facto representatives of their division." He states that the division presidency "may be perceived as an honorary designation that is conferred by peers as a form of recognition for academic forms of achievement within the profession." The individuals, he says, "are not necessarily viewed to function within any political context." He notes that several division presidents choose to limit their activities to the role of peer development and education, traditionally modeled by elected leaders of scientific professional organizations. [Requestor B] argues that being elected president of a division does not confer leadership status upon a colleague; it only acknowledges a [professional's] previously demonstrated achievement or leadership. [Requestor B] sees no conflict in a division president continuing to serve on the State Board for [the profession].
In [ ], 1995, the Executive Secretary to the State Board asked [the professional] to take a leave of absence or resign, or, alternatively, not accept the position with [the professional association].(2) [The professional] declined to take either step, and in a [ ], 1995 letter to SED, he maintained that he was not part of the structure of [the professional association] that addressed broad policy issues, that he would not be a member of the Council, and that he would not involve himself "with any strictly guild serving agenda." He stated that, as a division president, he would function as a facilitator to enhance the professional development and clinical effectiveness of colleagues employed by the government.
In a second letter to [the professional], SED cited an article published in [ ], 1996 in [a professional magazine] in which [the professional], who is identified in the [magazine] as president elect, takes a position that SED characterizes as advocating and seeking support for a political agenda. He urges amending the current licensing statute to eliminate specific exemptions which require "bureaucratic initiative and legislative support." The specific issue on which [the professional] wrote is one which, according to SED, could require the public comment of the Regents to the Legislature and the Governor, and which would be based on the advice of the State board.
As this matter is presented to the Commission, SED has demanded that [the professional] step down from either the Board or his position in [the professional association] pursuant to the 1992 resolution, and [the professional] has stated that he will not, asserting that there is no conflict. SED asks whether the ethics laws require that he cease to act in his dual capacity.
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:
(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 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.
. . .
(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.
. . .
Section 74 addresses not only actual conflicts of interest but also conduct that gives rise to the appearance of a conflict. The law is intended to restore the public's trust and confidence in government through the prevention of favoritism, undue influence, corruption and abuses of official position.
In a prior formal opinion, the Commission considered whether a leasing agent employed by [a State agency] could also serve as an elected town official for a locality over which he had official responsibility to secure leases on behalf of the State. See Advisory Opinion No. 92-16. The Commission considered whether he could properly perform his official duties for the State in negotiating and securing leases while, at the same time, advocating for the interests of his constituents to secure as many leases as possible within the locality in which he held an elected position. The Commission concluded that even if there was no actual conflict, there remained the appearance of a conflict under Public Officers Law §74 and that the individual could not hold both positions simultaneously.
Based on the above precedent, the Commission concludes that SED's policy, as formulated in the 1992 resolution adopted by the Advisory Council of State Board Chairs, is consistent with Public Officers Law §74. This conclusion is compelled by examining the nature and purpose of a professional board and a professional association.
The State Board advises the Regents and SED, both of which license, regulate and discipline [professionals]. [The professional association], on the other hand, is a professional association that advocates on behalf of members of the profession.(3) While the State board and [the professional association] may take the same positions on some issues, their interests are not identical. In fact, it is likely that they will take different positions on issues that concern licensing, professional fees, and disciplinary procedure. Where there is such a difference, it would be troubling if a State board member, who is privy to confidential information and discussions, were to hold a leadership or advocacy position in [the professional association]. In addition, a professional association other than [the professional association] may reasonably believe that its interests will not get a fair hearing before the Board if a [the professional association] leader is a member. For these reasons, SED's prohibition on Board members simultaneously serving in leadership or advocacy positions with professional associations is consistent with the Code of Ethics of Public Officers Law §74.
The issue, then, is whether [the professional] occupies a leadership or advocacy position in [the professional association] by virtue of his role as president elect and president of the [ ] Sector Division. On this, [Requestor A] and [Requestor B] sharply disagree. While they both recognize that [the professional] is not a member of the Council of Representatives, the policy-setting body of the [the professional association], they perceive the role of a division president quite differently.
While [Requestor A] states that "there is no question that this is both a leadership position and a position that drives policy in the Association," [Requestor B], the Association's President, represents that a division president is involved only in peer development and education, and not in policy orientated issues.
Having found SED's policy consistent with Public Officers Law §74, the Commission is not in a position to apply that policy. It does not have a sufficient understanding of the operation of [the professional association], a private organization. If SED determines that [the professional's] activities are of a leadership or advocacy nature, it should grant him the option of a leave of absence from the Board. If he disagrees, he can pursue legal remedies before or against the Regents.
The Commission hereby renders its opinion that SED's policy of prohibiting board members from concurrently serving in leadership and advocacy positions with professional associations is consistent with the Code of Ethics of Public Officers Law §74. The determination of whether [the professional] occupies such a position in [the professional association] in violation of this policy rests with SED and the Regents.
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: May 28, 1996
1. Although he will hold an office in the [ ] Division, [the professional] does not practice his profession as a public employee.
2. There is no argument, however, that [the professional] could accept appointment to a State licensure/disciplinary panel and maintain the position with [the professional association].
3. According to the records of the New York Temporary State Commission on Lobbying, [the professional association] retains the services of a registered lobbyist.