|Advisory Opinion No. 97-18:||Participation by State officers and employees in educational seminars sponsored by for-profit entities.|
The following advisory opinion is issued in response to a request submitted by [ ], General Counsel for the [a State Board] regarding the propriety of participation by Board executives and staff members in educational seminars and conferences that are sponsored by for-profit entities.
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 there is no bar to executives or staff members of the Board participating in an educational seminar or conference sponsored by a profit making organization.
On occasion, Board executives and staff members are invited to make presentations concerning Board practices and processes at educational seminars and conferences. The person making the presentation does not receive a fee, nor, in most instances, travel reimbursement. When travel expenses are involved, the Board applies the criteria set forth in the Public Officers Law and Commission regulations.
[The General Counsel] has asked whether there is any prohibition on an executive of the Board or a staff member participating in such an event where the sponsor is a for-profit organization that charges a fee to those in attendance.
Public Officers Law §74(2), the rule with respect to conflicts of interest states:
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.
The Commission, in its opinions, has recognized that one of the obligations of a State agency is to educate the public about its work and the laws under which it operates. In Advisory Opinion No. 95-25, the Commission prohibited attorneys from receiving royalties for chapters they were asked to write because the subject matter of their work, about which readers would learn, was related to the aspect of their job responsibilities that requires them to inform the public. In another context, the Commission has permitted State employees to accept otherwise prohibited gifts of food and drink when they serve as a participant or a speaker at a professional or educational conference or participate in a widely attended gathering for an agency purpose (Advisory Opinion No. 94-16). In each of these instances, the concept underlying the Commission's conclusion was that an agency, as part of its responsibilities, has the obligation to educate the public, and especially those directly interested in its work, about its mission.
With respect to the question presented, the receipt of a gift or of travel reimbursement is not an issue. Rather, the concern is whether agency staff is being used to support a private sponsor that is holding a seminar or conference for profit making purposes. This would present a potentially serious problem if the sole purpose of the participation of the agency executive or staff member were to assist the sponsor in its profit objectives.(1) However, there is another purpose to be served by the individual's appearance, and that is to educate the audience. As noted above, this is a valid State purpose. Just as an employee can accept otherwise prohibited gifts, such as meals, when attending a conference, seminar or gathering for an agency purpose, there is no bar to an agency executive or staff member participating in a seminar or conference sponsored by a profit making organization. From the agency's perspective, the purpose of such participation is the education of those in attendance, which makes the appearance permissible even if the sponsor is a for-profit entity.
Since a Board representative who participates in an educational conference is acting in his or her official capacity, fulfilling a job responsibility and acting for a State agency purpose, there is no conflict with the proper discharge of the individual's duties in the public interest, and, therefore, no violation of Public Officers Law §74.
Although there is no prohibition on the Board's executives and staff members participating in conferences, the Commission suggests that the Board, to avoid the appearance that it is favoring one sponsoring entity over another, may wish to develop criteria to determine which conferences its employees should attend. This would enhance the appearance of fairness in the Board's responses to requests for the participation of its employees.
Executives and staff members of the Board may participate in conferences and seminars sponsored by for-profit organizations where a fee is charged to those attending.
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
Donald A. Odell
Paul L. Shechtman, Members
Dated: July 28, 1997
1. In the context of reviewing outside activities, the Commission has expressed its concern about State officers and employees serving on the boards of for-profit corporations. [Advisory Opinion Nos. 90-6, 95-21, citing Op. Atty. Gen. F79-66].