|Advisory Opinion No. 96-22:||Restrictions on the Department of Environmental Conservation's acceptance of tuition waivers from public and private universities in return for the agency's assistance with student intern programs.|
The following advisory opinion is issued in response to an inquiry from John P. Cahill, ("Cahill"), General Counsel of the Department of Environmental Conservation ("DEC"), who inquires about the acceptance of tuition waivers offered by both public and private universities to encourage DEC to continue its student intern programs.
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 DEC may accept tuition waivers in return for the agency's support for intern programs, as the waivers are part of an agreement for consideration and do not constitute gifts to individual employees or to the agency. Even if they were gifts, there would be no violation of §§73(5) or 74(2).
Cahill has advised the Commission that certain divisions within DEC offer internship opportunities for students at both the undergraduate and graduate levels. While these programs benefit DEC by providing a source of enthusiastic, albeit inexperienced, assistance, the meaningful supervision of interns can create a significant workload which is not always offset by the assistance provided. To encourage DEC to continue to provide these opportunities, some schools have offered a tuition waiver for one course for each intern placed with the agency. Cahill has advised the Commission that the DEC employee supervising the intern would customarily be offered the waiver, but he or she would be permitted to use it only for courses that are job related.
Cahill asks that the Commission provide guidance as to whether DEC staff may accept and use the waivers as described. He specifically asks whether they may be received from SUNY and/or private colleges, and whether any restrictions should be placed upon their use.
Public Officers Law §73(5) provides as follows:
No statewide elected official, state officer or employee, member of the legislature or legislative employee shall, directly or indirectly, solicit, accept or receive any gift having a value of seventy-five dollars or more whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or in any other form, under circumstances in which it could reasonably be inferred that the gift was intended to influence him, or could reasonably be expected to influence him, in the performance of his official duties or was intended as a reward for any official action on his part. No person shall, directly or indirectly, offer or make any such gift to a statewide elected official, or any state officer or employee, member of the legislature or legislative employee under such circumstances.
This subdivision prohibits an individual State officer or employee from directly or indirectly soliciting, accepting or receiving any gift worth $75 or more under circumstances in which it could be inferred that the gift was intended to influence him or her, or could reasonably be expected to influence him or her, in the performance of official duties, or was intended to reward official action. It also prohibits any person from directly or indirectly offering or making such a gift to a State officer or employee. Thus, it is applicable to both a donor and recipient.
Public Officers Law §74(2) is also applicable to gifts in certain circumstances. This provision reads as follows:
No officer or employee of a state agency, member of the legislature or legislative employee 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.
Under the sections of the Public Officers Law cited above, the tuition waiver, as described, would be unlawful if it were an inappropriate gift to a DEC employee. In analyzing the facts presented, two questions need to be considered. First, is the tuition waiver a gift, and if it is, is it a gift to DEC or the employee? Second, if it is a gift, is it permissible under Public Officers Law §§73(5) and 74(2)?
Looking first at the nature of the transaction, the Commission views the arrangement as essentially an agreement for consideration between two parties rather than as a gift. From Cahill's description of the program, it appears that DEC, in many instances, is assuming an obligation that outweighs the benefits it receives in accepting interns. If this were not the situation, there would be no need for the schools to have to encourage the agency to continue the programs. Viewed in this light, the offering of tuition waiver is part of an agreement between the school and DEC, whereby the school gives DEC the benefit of the tuition waiver in exchange for its assuming the supervision and training of an intern. Under this analysis, the arrangement between DEC and either a public or private college is appropriate. There is no Public Officers Law issue.
Even if the tuition waiver offered to the agency were viewed as a "gift," it would not be prohibited by the relevant provisions of the Public Officers Law. In conversation with the Commission, Cahill advised that the universities do not select the participating DEC program or the supervising employee. It is the prerogative of the Commissioner to assign the intern to a particular employee. In addition, it is within the discretion of the Commissioner to offer the waiver to any DEC employee, although, in practice, he would almost always offer it to the supervising employee. Thus, if the tuition waiver is a gift, it is more like a gift to the agency than to any individual employee. Clearly, the school does not have the ability to direct the waiver to any particular employee, and it cannot offer the waiver with the intent to influence or reward a particular individual.
If the waiver is viewed as a gift to DEC, two advisory opinions would be controlling. In Advisory Opinions No. 92-1 and 95-38, the Commission considered gifts to an agency where the agency head has the authority to accept official gifts. Basically, the Commission held that agencies may accept donations from individuals, businesses or organizations, even those whose activities are subject to its jurisdiction, unless the donor is under investigation by or in litigation with the agency. In Advisory Opinion No. 95-38, the Commission advised that: "Decisions as to the propriety of a donation must be made by the Commissioner on a case-by-case basis, considering its source, timing and amount . . . ."
Given these guidelines, the tuition waiver, if it were a gift to DEC, would be permissible unless DEC were investigating the school or in litigation with the school, or other unusual circumstances were to prevail.
The Commission concludes that DEC may accept tuition waivers in return for the agency's support for intern programs, as the waivers are part of an agreement for consideration and do not constitute gifts to individual employees or to the agency. Even if they were gifts, there would be no violation of §§73(5) or 74(2).
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.
Evans V. Brewster
Angelo A. Costanza
Robert E. Eggenschiller, Members
Dated: September 18, 1996