|Advisory Opinion No. 97-21:||Application of Public Officers Law §74 to an engineer employed by [a State authority] who wishes to run for county legislator.|
The following advisory opinion is issued in response to an inquiry from [ ], who asks whether he may seek the elective office of [ ] County Legislator while serving as a [ ] Engineer for [a State authority].
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 [the requesting individual] may, consistent with Public Officers Law §74, seek election to and serve as a member of the County Legislature. In the unlikely event that a specific matter should arise which might create a conflict of interest or the appearance of a conflict, either in his State or elected position, [the requesting individual] should recuse himself from dealing with that matter.
[The requesting individual] is employed by [the State authority] as a [ ] Engineer. He has not been designated by his employer as a policymaker. While there is no Civil Service job specification for his position, [the requesting individual] has advised the Commission that his duties require that he implement [the State authority's] [ ] Management System. He stated that he is charged with the responsibility of instituting new management tools to maximize the utilization of the workforce for [the State authority's] projects.
On March 24, 1997, [the requesting individual] requested an opinion from the Commission as to whether he could seek election to and serve in the [ ] County Legislature while employed with [the State authority]. On May 13, 1997, the Commission issued an informal advisory opinion in which it concluded that [the requesting individual] may seek and hold such office, although it required that, in the unlikely event that a matter arose which might create a conflict of interest or the appearance of a conflict, [the requesting individual] recuse himself from dealing with that matter.
[The requesting individual] has now requested that the Commission issue a formal opinion.
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 of interest or the appearance of a conflict 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 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). The Commission has recognized, however, that there may be instances when holding an elected office may necessitate recusal from certain activities in order to avoid even the appearance of a conflict of interest, or, if the potential for conflict is too great, preclude an employee from seeking or holding elected office.
In Advisory Opinion No. 92-16, the Commission determined that an individual serving as a leasing agent for a State agency was prohibited by Public Officers Law §74 from seeking election to and serving on a city council in the geographic area in which he worked, taking into account the individual's job responsibilities. The Commission determined that it was conceivable that political opponents would accuse the leasing agent of using his office to secure political advantage, that official State activities would be influenced by the contributions and support of the State agency's clients and that the individual's objectivity and negotiations on behalf of the State agency could be questioned. In the same opinion, the Commission determined that the leasing agent could seek and hold the position of school board member, since his State duties were not so intertwined with the duties he would perform as school board member as to prohibit his service.
In Advisory Opinion No. 93-9, the Commission considered whether a non-policymaking employee serving as a coordinator for a drug and alcohol prevention program for a State agency could seek elected office as a county legislator and serve as a political party committeeman. There, the Commission determined that Public Officers Law §74 would not preclude the individual from seeking and holding legislative office or the position of committeeman, provided he disclosed to his supervisor his campaign and potential service and recused himself from matters 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 Advisory Opinion No. 96-30, the Commission considered whether the responsibilities of an official of the State University of New York 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 it defined those circumstances.
Recently, in Advisory Opinion No. 97-17, the Commission found it unlikely that the responsibilities of a [State employee] employed by a State psychiatric center located outside of the Town in which he lived would conflict with his serving on his Town board. It, therefore, determined that the employee could seek election to the board.
Having reviewed the description of the duties that [the requesting individual] has provided, the Commission finds that it does not appear that his responsibilities as a [ ] Engineer would conflict with his seeking the position of and serving as a member of the [ ] County Legislature. There appears to be no connection with or relationship between [the requesting individual's] State responsibilities and those that he would be called upon to perform as a legislator. Accordingly, Public Officers Law §74 does not preclude him from serving in the County Legislature.
However, as both a State employee and an elected official, caution must be always be exercised to avoid any conflict of interest or appearance of a conflict. Consequently, in the unlikely event that a matter arises, whether in [the requesting individual's] State employment or elected position, where there might be a conflict of interest between his State and local responsibilities, or the appearance of a conflict, he should recuse himself from that matter.
The Commission concludes that [the requesting individual] may, consistent with Public Officers Law §74, seek election to and serve as a member of the [ ] County Legislature. In the unlikely event that a specific matter should arise which might create a conflict of interest or the appearance of a conflict, either in his State or elected position, [the requesting individual] should recuse himself from dealing with that matter.
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
Henry G. Gossel
Paul L. Shechtman
O. Peter Sherwood, Members
Dated: September 23, 1997