New York State
Ethics Commission


Advisory Opinion No. 96-21: Application of Public Officers Law §74 to a State employee entering into a contract for the publication of a book.

INTRODUCTION

The following advisory opinion is issued in response to an inquiry from [ ], an Assistant Attorney General with the New York State Department of Law ("Department"), who asks whether he may enter into a contract with a publisher for publication of a book he has written on criminal law and procedure.

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 does not prohibit [the requesting individual from entering into the proposed contract, as he has met all of the conditions established by the Commission for a State employee to receive royalties from the publication of a book that the employee has authored.

BACKGROUND

[The requesting individual] states that he has written a book on criminal law and procedure as a private endeavor unrelated to his job responsibilities for the Department as an Assistant Attorney General. He asserts that his book is the product of 26 years of experience and effort. It was written at home on his own time, and no State property or resources were used. Furthermore, he states that the contents of the book are purely a matter of legal scholarship based on case law and statutes, and include no political or policy statements. The book is intended to appeal to both the prosecution and the defense bar, and, he hopes, the judiciary. It was not written for any person or entity having a business or other connection with the State.

[The requesting individual] will not be identified by the publisher as an employee of the State, although he will include his curriculum vitae, listing his professional experience over the years, so the reader will be familiar with his credentials. Promotion of the book will be handled by a private company having no former or current dealings with the State. He will not promote the book as part of his official duties for the Department, which will also play no role in its publication or promotion. A disclaimer will appear at the beginning of the book under his curriculum vitae and professional biography.(1)

[The requesting individual] has also instructed the private publisher to include in the proposed publishing contract a clause that will require that one-third of any royalties to which he is entitled be paid to [ ], a charity [ ].

On [date] 1996, [the requesting individual] asked the Commission for an informal opinion. In response, the Commission concluded that [the requesting individual] met the conditions set forth by the Commission in Advisory Opinion No. 89-10 for a State employee to be permitted to receive royalties. He has now requested a formal opinion.

APPLICABLE STATUTE

The State's Code of Ethics, contained in Public Officers Law §74, prohibits activities having a conflict or the appearance of a conflict of interest. The rule with respect to conflicts of interest is provided in Public Officers Law §74(2):

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.

DISCUSSION

Public Officers Law §74, the code of ethics, is concerned with both actual and apparent conflicts of interest and provides minimum standards against which State officers and employees are expected to gauge their behavior. The code addresses the conflict between the obligation of public service and private, often personal, financial interest.

In Advisory Opinion No. 89-10, the Commission held that Public Officers Law §74 does not preclude a State employee who is a policymaker from receiving royalties from the sale of a book which he co-authored as long as the following conditions are met:

  1. the book was written on his own time and not on State time;

  2. no State property, personnel or other resources were utilized;

  3. the subject matter was sufficiently unrelated to his job responsibilities so that authorship or the advice or material provided in the book could not be viewed as part of his job;

  4. the book was not written for an organization or audience which is regulated by, regularly negotiates with, or has contracts with the individual's employing agency;

  5. the book does not identify the author as a State employee (although a biography may, among other items list such credential);

  6. the State agency where the author is employed does not advertise, otherwise promote or endorse the book;

  7. the author does not advertise, otherwise promote or endorse the book when he is performing his State duties, whether involving training or otherwise;

  8. the State agency does not use the book or make it available as part of any of its training programs; and

  9. the book contains a disclaimer that the opinions and statements contained therein are those of the author only and do not represent the opinions or interests of the State agency at which he works.

From the facts presented by [the requesting individual], it appears that he has been careful to meet all of these conditions. He may, therefore, enter into the contract for publication of the book.

CONCLUSION

The Commission hereby renders its opinion that Public Officers Law §74 does not prohibit [the requesting individual] from entering into the proposed contract, as he has met all of the conditions established by the Commission in Advisory Opinion No. 89-10 for a State employee to receive royalties from the publication of a book that the employee has authored.

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.

All concur:

Evans V. Brewster,
Angelo A. Costanza,
Robert E. Eggenschiller, Members

Dated: September 18, 1996


Endnotes

1. In his request for a formal opinion, [the requesting individual] has requested that the Commission forward to him a standard disclaimer. However, the Commission has no such "standard disclaimer." A short statement indicating that the opinions expressed in the book are [the requesting individual's] and do not necessarily represent those of the Department of Law will suffice.



URL: http://www.nysl.nysed.gov/edocs/ethics/96-21.htm