New York State
Ethics Commission


Advisory Opinion No. 97-4: Application of Public Officers Law §74 to an employee who wishes to run for elected office.

INTRODUCTION

The following advisory opinion is issued in response to an inquiry from [a State employee], who asks whether, given a recent job reassignment, he may seek elective office in the City of [ ] while continuing to serve as [an individual involved with the leasing of property] for [a State agency].

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, as [the State agency] has represented that, despite the reassignment, [the requesting individual] is likely to be assigned in the future to negotiate leases for property in the City of [ ], he may not seek elective office in that City at this time.

BACKGROUND

In 1992, [the requesting individual] requested an opinion from the Commission as to whether he could seek election to the [ ] City Council while [having responsibility for leasing property for his agency] for property located within the City of [ ]. In Advisory Opinion No. 92-16, the Commission concluded that, taking into account his job responsibilities, [the requesting individual] was prohibited by Public Officers Law §74 from seeking election to and serving on the City Council. The Commission, noting the geographic area in which he worked, found that it was conceivable that political opponents would accuse [the requesting individual] of using his office to secure political advantage, that his official State activities could be influenced by the contributions and support of [the agency's] clients, and that his objectivity and negotiations on behalf of [the agency] could be questioned. Furthermore, the Commission held that, under the circumstances, recusal was not a viable option.(1)

[The requesting individual], following the determination of the Commission, has not sought a City Council position. However, he has apparently remained an active citizen in [the city], voicing his positions publicly on a variety of issues.

In early 1995, the circumstances which were presented to the Commission in 1992 arguably changed. On [date], [the requesting individual's] supervisor, reassigned to another [agency] employee a project in [the city] for which [the requesting individual] had been responsible. In a memorandum of that date to [the supervisor], [the requesting individual] confirmed this reassignment, and said he was confirming that this occurred due to his "involvement in governmental activities in the City of [ ] and a perception that there exists a possible appearance or possible perception of a conflict of interest" between his participation in such activities and his duties as a [job title]. [The requesting individual] stated that "this finding extends not only to this project but will necessarily apply to any other project which involves locating State offices within the City of [ ]." He, therefore, concluded that since all other projects in [the city] would likewise be reassigned, he was free to run for elective office in the City.

On May 1, 1995, [the supervisor] responded to [the requesting individual's] memorandum and indicated that the reassignment was based on several factors, only one of which was the agency's concern with [the requesting individual's] frequent attendance at televised [ ] City Council meetings and [ ] political functions. [The supervisor] noted that there was a relatively low workload for upstate projects at the time and "a great deal of complex work in Metropolitan New York City." Therefore, [the agency's] downstate leasing agent was in need of assistance. Finally, [the supervisor] noted that the project in [the city] was straightforward and could be handled by an employee less senior than [the requesting individual].

[The supervisor] stated that despite reassignment of the one project, he could not "reasonably guarantee or assume" that [the requesting individual] would "never be assigned projects involving locating State offices within the City of [ ]." He said that "If anything, the contrary is true." He noted that, based on administration policy, many of [the agency's] projects could evolve into [regional] Projects in which [the requesting individual] would have to survey space [in several cities, including the one where he seeks elective office.]

In conclusion, [the supervisor] cautioned [the requesting individual] that he was not to assume that he was free to run for elective office in the City of [ ] "unless the State Ethics Commission reverses its Advisory Opinion" and until he is granted specific approval by the Commissioner of [the agency].

In light of these developments, [the requesting individual] has requested that the Commission "re-review" Advisory Opinion No. 92-16. He argues that the logic of [the supervisor's] memorandum would prohibit his being assigned future projects in [the city], as he intends to remain politically active. Therefore, as Advisory Opinion No. 92-16 was based upon his involvement in leases in the City of [ ], [the requesting individual] believes that he is no longer barred from seeking elective office there.

APPLICABLE STATUTE

The State's Code of Ethics, contained in Public Officers Law §74, prohibits a State officer or 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.

DISCUSSION

In considering [the requesting individual's] earlier request, the Commission, in its Advisory Opinion No. 92-16, began by noting 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. This was further explained in Advisory Opinion No. 93-9, where the Commission said that there is no absolute prohibition against being elected to and holding public office while continuing one's employment with the State.

In that Advisory Opinion, the Commission was asked to consider whether a non-policymaking employee serving as an agency coordinator for a [ ] program could seek elected office as a County legislator. The Commission determined that Public Officers Law §74 did not preclude the individual from seeking and holding the position of County legislator provided he disclosed his 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 as a legislator before any State agency on behalf of his County.

In a more recent opinion, Advisory Opinion No. 96-30, the Commission considered whether the responsibilities of the Director of [ ] Relations at SUNY conflicted with his service as a County legislator in view of the Legislature's oversight of a community college located within the County. Again, the Commission concluded that §74 did not preclude him from continuing to serve as a legislator. However, following previous precedents, the Commission required recusal in certain circumstances and defined those circumstances.

In [the requesting individual's] situation, he has previously been prohibited by Advisory Opinion No. 92-16, discussed above as part of the background section of this opinion, from seeking or holding the position of member of the [ ] City Council because of his specific State responsibilities. As noted, the Commission held that, because he negotiated leases for property located in [the city], recusal was not sufficient.

Considering the previous opinion issued to [the requesting individual] and the other related opinions discussed above, it is clear that [the requesting individual] may seek and hold office on the [ ] City Council if his responsibilities with [the agency] do not include dealing with property within the City; he is precluded from seeking and holding such office if they do include property within this geographic area.

While [the requesting individual] argues that [the State agency] will not assign him to future properties in [the city] because of his activism in City affairs, which he says will continue, his bureau chief has stated that this is not the agency's position. In fact, he has said, "If anything, the contrary is true." The bureau chief has indicated that there are reasons why [the requesting individual] is likely to be assigned to [city] projects in the future.

Although the Commission understands [the requesting individual's] argument, which is not illogical, it recognizes that the assignment of a State employee is within the province of his or her agency. Here, the chief of [the requesting individual's] bureau has indicated that [the requesting individual] is likely to be assigned to lease negotiations in [the city] in the future. Given the authority of the agency, the Commission must accept its representations. It has no legal basis to assume that [the requesting individual] will not be assigned to leases in [the city] when his bureau chief has stated that he will. Therefore, based upon the facts before it and its previous Advisory Opinion No. 92-16, the Commission concludes that [the requesting individual] may not seek or hold the position of member of the City Council of [ ]. If [the agency] were to decide that [the requesting individual] would not generally be assigned to [city] projects, he could, at that time, hold office subject to appropriate recusal requirements.

CONCLUSION

The Commission concludes that Public Officers Law §74 precludes [the requesting individual] from seeking elective office in the City of [ ], as [the State agency] has represented that his responsibilities as a [job title] are likely to require that he negotiate leases on property located within the City. Should the agency determine in the future that [the requesting individual] would not generally be assigned to [city] projects, he could, at that time, hold such office subject to appropriate recusal requirements.

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.

All concur:

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

Dated: February 10, 1997


Endnote

1. Although denying [the requesting individual] permission to run for City Council, the Commission approved [the requesting individual's] request to run for a position on the School Board as long as he complied with certain conditions. The nature of that office did not present the same potential for the appearance of a conflict with his State duties.



URL: http://www.nysl.nysed.gov/edocs/ethics/97-04.htm