|Advisory Opinion No. 96-30:||Application of Public Officers Law §74 to an employee who wishes to continue to hold elected office.|
The following advisory opinion is issued in response to an inquiry from [the requesting individual], recently appointed as Director of [ ] at the State University of New York ("SUNY"), who asks whether he may continue to hold elective office as a member of the [ ] County Legislature and continue to serve as chair of its Education Committee.
Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by §94(15) of the Executive Law, the Commission hereby renders its opinion that Public Officers Law §74 does not prohibit [the requesting individual] from continuing to serve as a County Legislator. However, he must recuse himself in his SUNY position from all matters involving [ ] County and [ ] Community College, the only community college within [ ] County. As a Legislator, [the requesting individual], to avoid a conflict with his State position, should recuse himself from matters dealing with SUNY or [the community college] and resign from the Education Committee.
[The requesting individual] has been a member of the [ ] County Legislature since [date], and he currently serves as chair of the Education Committee. He has advised the Commission that this three member Committee has oversight of the County's museums, libraries and its sole community college, [ ].
The [ ] County Legislature consists of 19 elected members. Among the general powers of the Legislature are: to establish positions of employment (County Law §204); to conduct investigations into subject matter within its jurisdiction (County Law §209); to initiate an examination or post audit of money, funds or other property belonging to the county (County Law §210); and to exercise general care and control of the corporate real and personal property of the county (County Law §215). The Education Committee has, among its responsibilities, the authority to receive and review funding resolutions passed by [the community college's] Board of Directors prior to their consideration by the full Legislature.
Public community colleges, such as [ ], are sponsored by a local jurisdiction but operate under the aegis of the SUNY Trustees (Education Law §6302). SUNY must approve the establishment of each community college, as well as its curricula development (Education Law §6303) and operating budget (Education Law §6304). The local jurisdiction shares in financing the capital and operating costs of any college within its jurisdiction, along with SUNY and the college.(1) However, the local jurisdiction is not involved in the fundraising activities of a college, nor is it involved in academic or hiring decisions.
On [date], [the requesting individual] became the Director of [ ] for SUNY, which has not been designated as a policymaking position. He has advised the Commission that he deals primarily with issues generated by SUNY's State-operated campuses.(2) The major part of his duties concerns management responsibilities for system-wide collaboration with external entities, such as the State Legislature, the Governor's Office and the New York State Business Council.
A less significant amount of [the requesting individual's] time is spent rendering services within the higher education community, where he acts as a staff liaison to various State University organizations. These include the "Association of Council Members and College Trustees" and the "SUNY Confederation of Alumni Associations." [The requesting individual] has described the Confederation as an organization of alumni associations consisting of SUNY's State-operated institutions and community colleges. It meets on a social basis several times each year and presents awards to distinguished alumni of SUNY, including alumni of the community colleges. [The requesting individual] also serves as Secretary to the Chief Advancement Officers Organization.(3) This is a newly formed organization established to advise and assist the boards of trustees of the various community colleges in their fundraising efforts. It is anticipated that each community college will designate a senior level administrator (e.g., Vice President for Development, Public Relations or College Affairs) as its representative to the organization.
[The requesting individual] states that he has "no policy role in either academics or fiscal affairs, nor capital construction policies influencing [the community college]."(4) Recently, however, [the requesting individual] has indicated that the nature of his job responsibilities is evolving and that he may, at some later date, become more actively involved in community college matters.
According to his job description, [the requesting individual] is also Secretary to the University Affairs Committee of SUNY's Board of Trustees, which requires him to schedule meetings, prepare the agenda and minutes, and execute policy directions of the Committee and the Board. He also assists the Vice Chancellor of University Relations in both internal and external policy and communications.
On [date], prior to [the requesting individual's] taking his position at SUNY, he asked the Commission for an informal opinion as to whether the Public Officers Law would permit him to continue to serve as an elected official when he assumed his State employment. In response, the Commission concluded that [the requesting individual] may continue to serve as a County Legislator, but it noted that "matters concerning [the community college] or other SUNY matters that concern [ ] County might create a conflict of interest or appear to create a conflict."(5) The Commission directed [the requesting individual] to recuse himself from matters dealing with [the community college] and [ ] County in his State position and advised him to recuse himself from matters dealing with SUNY and [the community college] in his legislative position. The Commission further advised [the requesting individual] to resign from the Education Committee to assure that there was no conflict with his State employment.
At the time the Commission issued its informal opinion, it had before it only the newspaper employment advertisement for the position [the requesting individual] was to assume, which gave a barebones description of the position's required duties. As this was a new position, no job description had yet been developed. Now that a more comprehensive official job description has been issued, [the requesting individual] is requesting a formal opinion. He asks that he be permitted to remain on the Education Committee and to vote on the floor of the Legislature on resolutions pertaining to [the community college].
The State's Code of Ethics, contained in Public Officers Law §74, prohibits a State employee from engaging in activities having a conflict or the appearance of a conflict of interest with his or her public responsibilities. 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.
Following the rule with respect to conflicts of interest, Public Officers Law §74(3) provides standards of conduct which address actual as well as 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 in violation of his trust.
These provisions address not only actual conflicts of interests, but also conduct that gives the impression that a conflict exists. The law is intended to enhance the public's trust and confidence in government through the prevention of corruption, favoritism, undue influence and abuse of official position.
The Commission has held that Public Officers Law §74 should not be read to preclude State officers and employees who conduct business with the general public from participating in the political process (Advisory Opinion No. 92-16). It is the Commission's view that there is no absolute prohibition against being elected to and holding public office while continuing one's employment with the State (Advisory Opinion No. 93-9).(6) However, the Commission has recognized that there are instances when the holding of an elected office may necessitate recusal from certain matters in order to avoid even the appearance of a conflict of interest. In some unusual situations, where the conflict is direct, a State employee may be prohibited from seeking a particular elected office.
Advisory Opinion No. 92-16 illustrates the latter situation. There, the Commission, taking into account an individual's job responsibilities as a leasing agent for a State agency, determined that he was prohibited by Public Officers Law §74 from seeking election to and serving on the city council of a municipality located in the geographic area in which he worked. The Commission determined that it was conceivable that political opponents would accuse the leasing agent of using his State position to secure political advantage, that official State activities would be influenced by the contributions and political support of the State agency's clients, and that the individual's objectivity and negotiations on behalf of the State agency could be questioned.
The more common situation is illustrated by Advisory Opinion No. 93-9, where the Commission considered whether a non-policymaking employee serving as an agency coordinator for a drug and alcohol prevention program could seek elected office as a County Legislator and serve as a political party committee person. The Commission determined that Public Officers Law §74 would not preclude the individual from seeking and holding the position of County Legislator or serving as a committeeman, provided he disclosed these activities to his supervisor and recused himself from matters coming before his State agency affecting his County. The opinion further precluded the individual, based on §74 appearance of impropriety standards, from appearing before any State agency on behalf of his County, whether as a Legislator or a committeeman.
In [the requesting individual]'s case, the official job description for his position of Director of [ ] does not include responsibilities that directly conflict with his service as a [ ] County Legislator. Therefore, Public Officers Law §74 does not preclude him from continuing to serve in that capacity. However, following previous Commission precedents, including Advisory Opinion No. 93-9, discussed above, recusal is appropriate in certain circumstances. In [the requesting individual's] State capacity, he should recuse himself from any matter concerning [ ] County. This will avoid any appearance that he would be attempting to use his public position to benefit himself or the County in whose legislative body he sits. Similarly, recusal would be appropriate should a matter involving SUNY come before the County Legislature.
With regard to [the community college], the question that must be addressed is whether [the requesting individual's] work at SUNY is so related to the College that recusal is required. This is not easily answered, as [the requesting individual's] responsibilities at SUNY are evolving. [The requesting individual] claims that he has no policy role in either the academic or fiscal affairs of [the community college], and he notes that another individual has been hired by SUNY to coordinate with the community colleges. However, his job description does not preclude his involvement with these institutions. In fact, it specifically indicates that he may have communication with the community colleges. In addition, he appears to have a relationship with a newly formed organization that will advise community colleges in fundraising. Since each community college will designate a senior administrator to this organization, [the requesting individual] is likely to have significant contact with high level representatives of the community colleges.
Although the matter is not free from doubt, the Commission believes that [the requesting individual's] responsibilities at SUNY, as defined in his job description, are sufficiently related to community colleges and, therefore, to [the community college] so as to require recusal. His responsibilities in simultaneously serving at SUNY and in the County Legislature would require him to refrain from acting on [the community college] matters.
With regard to [the requesting individual's] continuing to serve on the Legislature's Education Committee, the same concerns that caused the Commission to advise his recusal from [the community college] matters lead to the conclusion that he should resign from the Education Committee. The Committee's responsibility to oversee [the community college] raises the risk of a conflict of interest or appearance of a conflict with his State position.
[The requesting individual] is not precluded by his position at SUNY from continuing to serve as a [ ] County Legislator. However, he must recuse himself in his SUNY position from all matters involving [ ] County and [the community college]. As a Legislator, [the requesting individual], to avoid a conflict with his State position, should recuse himself from all matters dealing with SUNY or [the community college] and resign from the Legislature's Education Committee.
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
Donald A. Odell, Members
Dated: December 17, 1996
1. Generally, the State, local sponsor and community college share equally one-third of the operating costs of a college. State-supported aid for a community college must be approved by the SUNY Trustees (Education Law §6304).
2. Another individual, with whom [the requesting individual] does not work, performs similar duties on behalf of the community colleges. That individual serves as Director of the Association of the Boards of Trustees of the Community Colleges of SUNY, Inc. The position is funded by the community colleges.
3. Job description [ ] submitted by [the requesting individual].
4. Formal opinion request letter dated [ ].
5. Informal opinion dated [ ].
6. The Commission's view is consistent with that of the Attorney General, who found there is "no statutory or constitutional provision which would prohibit a State employee from being elected to or serving as a member of the Assembly while retaining his other State position." (Op. Atty. Gen. 43, 1974.) The opinion states the general rule that:
one person may hold two or more public offices at the same time provided that the duties to be performed do not create an incompatibility of offices.
The Attorney General's opinion cites the landmark case of People ex rel. Ryan v. Green, 58 N.Y. 295 (1874), in which the Court of Appeals stated:
Incompatibility between two offices, is an inconsistency in the functions of the two. . . . The offices must subordinate, one the other, and they must, per se, have the right to interfere, one with the other, before they are incompatible at common law.