|Advisory Opinion No. 97-27:||Whether Public Officers Law §74 precludes a member of the [ ] Board from appearing before the [agency in which the Board is created].|
The following advisory opinion is issued in response to a request by [ ], an attorney who serves as a member of the [ ] Board ("Board"). He asks whether he may, while serving on the Board, engage in the practice of law before the [agency in which the Board is created ("the 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 Public Officers Law §74 does not preclude [the requesting individual] from practicing law before [the agency] while serving as a member of the Board.
[The requesting individual] is currently a member of the Board and is seeking reappointment. [ ] he is a practicing lawyer. From time-to-time, his practice requires him to appear before [the agency] on behalf of his clients.
The Board consists of 14 members, including the Commissioner of [the agency], who serves as its Chair, and the Commissioner of [another State agency.] Staff services are provided by [the agency], or by such other State departments or agencies as the Chair deems appropriate [cite].
The twelve at-large members of the Board are appointed by the Governor. Of these twelve members, two are appointed upon the recommendation of the Temporary President of the Senate; two upon the recommendation of the Speaker of the Assembly; one upon the recommendation of the Minority Leader of the Senate; and one upon the recommendation of the Minority Leader of the Assembly.(1) Of the remaining six members, two are required to live within a municipality within which exists [a] site and to have been involved in a citizen's organization that has a purpose related to the site; two are to be representative of organizations whose prime function is the protection of natural resources; and two are to be representative of industries [ ].
None of the at-large members may be a State officer or employee. Each is required to be qualified to analyze and interpret matters pertaining to [ ] management and the remediation of [ ] sites. Members of the Board are uncompensated, but they are reimbursed for their actual and necessary expenses.
The Board is unusual in that it is created "within" [the agency], but the at-large members are to be considered officers or employees of "public entities" for purposes of defense and indemnification. Their defense and indemnification is covered by Public Officers Law §18, which covers public entities, rather than §17, which covers State officers and employees.
Pursuant to [cite], the Board is empowered to, inter alia:
-- serve as a working forum for the exchange of views, concerns, ideas, information and recommendations relating to [ ] management and the remediation of [ ] sites;
-- compel the attendance at each meeting of the Board of such personnel of [the agency], or of other appropriate state departments or agencies, as may reasonably be expected to supply any pertinent data the Board may request;
-- monitor and review the implementation of the [ ] program;
-- review the [work] remaining to be completed under the state [ ] plan as updated, the estimate of the costs which would be incurred in the completion [ ], the schedule under which the costs will be incurred, the revenues and resources expected to be available to meet these costs;
-- request and receive from [the agency] at each meeting of the Board any portions of the plan or any revisions, amendments or changes available for review, and any supporting documents or other pertinent data;
-- review and evaluate the municipal cost sharing program and review the appropriate state and industry contributions to the [ ] program; and
-- report to the Governor and to the Legislature each year its assessment of the implementation of the [ ] program, together with recommendations regarding the program, its implementation, available funding and resources, and the need for steps to assure the future availability of funding.
The State's code of ethics is contained in Public Officers Law §74. The rule with respect to conflicts of interest is found in subdivision 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.
This rule is further explained by standards set forth in subdivision 3 of §74. These standards include the following:
These provisions address not only actual conflicts of interest, 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 had occasion to apply §74 in circumstances similar but not identical to those presented here. In Advisory Opinion No. 93-17, a member of the [ ] Appeals Board ("Appeals Board") who was an attorney in private practice sought to practice before [the agency]. The Commission held that he would violate §74 if he were to represent clients before the agency.
The Appeals Board had been established by an Act which requires a permit to fill in or to alter any of the State's [ ] areas. The Act is enforced primarily by local authorities, but [the agency] acts whenever a locality fails to enact ordinances to protect its local area or when the Commissioner of [the agency], by rule, identifies certain areas as of unique value. In fact, very few localities have enacted local ordinances.
Like the Board in the instant case, the Appeals Board is created within [the agency]. It consists of five per diem members, all of whom are appointed by the Governor. Appeals are heard by one member although a majority vote of the members of the entire Appeals Board is necessary for the determination of an appeal.
The Appeals Board has the power to hear appeals taken by any party to a proceeding before the Commissioner or a local jurisdiction and to review any decision or order made by the Commissioner or a local government.(2) Significantly, the Appeals Board may affirm, reverse, stay or remand any order or decision of the Commissioner or a local government, and its determination is binding unless reversed by a court of competent jurisdiction.(3) The Commissioner, local government or any aggrieved party may obtain judicial review of a determination, decision or order of the Appeals Board pursuant to Article 78 of the Civil Practice Law and Rules.
In Advisory Opinion No. 93-17, the Commission carefully reviewed the powers of the Appeals Board and held that a member could not represent private clients in matters before [the agency] without creating the appearance of a conflict of interest. It stated:
This is so because the power to review and reverse the Commissioner's decisions is incompatible with representing clients seeking something of that very Commissioner. If the Board member were to engage in private practice before [the agency], the public might well infer that, in his role as Board member, he was affected or even influenced by his clients', not the public's, interests. By the very nature of the Board member's position and authority, there would always be the suspicion that the Commissioner or any party before the Board could be treated either favorably or unfavorably depending upon the Board member's success in his representation of private clients before [the agency].
The Commission also noted that an Appeals Board member, sitting in judgment of the decisions and orders of the Commissioner, is in a position where he might receive confidential information that, if used, could enhance his ability to represent private litigants before the State agency:
Whether the member would, in fact, take advantage of his State position to obtain or use confidential information is only partly relevant, as §§74(3)(f) and (h) prohibit actions which can lead to the public's perception that the State officer's actions result in a conflict of interest. The public might reasonably perceive that the Board member's representation of clients before [the agency] would be more successful because of his position on the Board.
In another opinion, the Commission considered whether a member of the Public Health Council ("Council") may appear before other components of the Department of Health ("DOH") with respect to matters not pending before the Council. The Council has broad powers to consider "any matter relating to the preservation and improvement of public health." It is authorized to adopt and amend the State sanitary code, and it must approve the establishment of all health facilities, as well as every transfer of interest in such facilities.
In Advisory Opinion No. 95-27, the Commission concluded that appearances by a Council member before DOH were prohibited by Public Officers Law §74, noting:
While the relationship between the Council and DOH is not identical to that between the Board and [the agency], as the Council does not have the statutory power to review and reverse orders and decisions of the Health Commissioner, the Council does act upon the recommendations of the Health Commissioner's staff and relies upon the advice and assistance of DOH employees. Therefore, the same concerns are present as were present in Advisory Opinion No. 93-17. The public could perceive that a member of the Council might be privy to confidential information that could be of value to a client when the member appears before DOH. The public could also perceive that a council member might receive preferential treatment from DOH because of his or her position.
A reading of Advisory Opinion Nos. 93-17 and 95-27 shows that the Commission carefully examined the powers of the bodies in question in reaching its conclusions. In several important respects, the powers, responsibilities and structure of the [ ] Board, of which [the requesting individual] is a member, are quite different from those of the Appeals Board and the Public Health Council. As noted in the background section of this opinion, the Board is unusual in that it is, by statute, "within" a State agency, but its members are indemnified pursuant to a statute that provides for indemnification of members of a public entity. They are not indemnified as State officers or employees. This demonstrates that the Legislature saw the [ ] Board as, in some respects, outside of [the agency]. Consistent with this concept, the Board does not have any advisory responsibilities with respect to [the agency's] Commissioner. Its advice is given only to the Governor and the Legislature, which are to receive, annually, its report assessing the implementation of the State's remediation program. In addition, the [ ] Board, unlike the Appeals Board and the Public Health Council, has no decisionmaking authority.
The Commission finds that these distinctions are significant. The Board's independence from [the agency], based on the indemnification provisions and, especially, its role as advisory to the Governor and the Legislature rather than to the agency, makes it more distant from the agency with which it has a relationship. Because of this distance, the concerns that were noted by the Commission in the opinions discussed above do not arise with respect to the [ ] Board. Without the close relationship, there is not the appearance of a conflict of interest that exists in the other situations. The risks of preferential treatment or the improper use of confidential information are minimal where the Board and the agency do not act together in the decisionmaking process. The Commission, therefore, concludes that [the requesting individual] is not prohibited from appearing as a private attorney before [the agency].(4)
Given the nature of the relationship between the Board and [the agency], Public Officers Law §74 does not preclude [the requesting individual] from practicing as an attorney before [the agency] while serving as a member of the Board.
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
O. Peter Sherwood, Members
Dated: December 17, 1997
1. [Footnote deleted.]
2. The Board has special additional powers with regard to [ ] County.
3. Appeals board review is only one option for an aggrieved party. Such a party may, alternatively, seek direct review of the Commissioner's action by way of an Article 78 proceeding.
4. Although Advisory Opinion No. 93-17 does not bar [the requesting individual's] practicing before [the agency], it does serve to bar his practicing before the Board. He "may not represent clients in cases before the Board or be involved in any fashion in a matter before the Board except in his capacity as a Board member".