|Advisory Opinion No. 98-08:||Whether Public Officers Law §74 precludes a member of the [ ] Board from appearing before the Department of Environmental Conservation.|
The following advisory opinion is issued in response to a request from [ ] an attorney who is under consideration for appointment to the [ ] Board ("[ ] Board"). He asks whether he may, if appointed to serve on the Board, engage in the practice of law before the Department of Environmental Conservation ("DEC"), the agency in which the Board has been established.
Pursuant to the authority vested in the State Ethics Commission ("Commission") by Executive Law §94(15), the Commission renders its opinion that Public Officers Law §74 would not preclude [the requesting individual] from practicing law before DEC should he be appointed to the Board.
[The requesting individual] is currently engaged in the private practice of law, handling matters almost exclusively in the environmental field. He has advised the Commission that he generally is engaged in three types of activities: (1) providing compliance advice to clients on statutory and regulatory requirements; (2) representing clients before DEC with respect to [ ] applications; and (3) providing assistance to clients on enforcement matters. His clients include universities and colleges, school districts, manufacturers, local oil distributors and medical facilities. He also represents several governmental units, including the [ ] Authority of [ ] County and the [ ] Authority, on [ ] issues. He estimates that approximately two-thirds of his practice involves [ ] matters. However, he has never represented any clients or had any matters before the [ ] Board, nor has he made any presentations before the Board. If appointed, he agrees that he would not represent any clients before the Board.
The [ ] Board is created within DEC and consists of fifteen members, including the DEC Commissioner, who serves as Chairman, Commissioners of two other State agencies and twelve at-large members.(1) Staff services are provided by DEC or by such other State agencies as the Chair deems appropriate. The twelve at-large members 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. Of the remaining six members, three must be representative of local governments in different geographic areas of the State, two must represent private industry in the field of [ ], and one must represent organizations whose prime function is the protection of health or environmental resources. None of the at-large members may be a State officer or employee. Each is required to be qualified, by professional training or experience, to analyze and interpret matters pertaining to [ ]. The members serve without compensation.
Pursuant to statute, the [ ] Board serves as a "working forum for the exchange of views, concerns, ideas, information and recommendations" relating to [ ]. The Board monitors, reviews and makes recommendations concerning the implementation of State agency programs designed to meet the objectives of the State's [ ] policy, as well as the State's efforts to assist local governments in planning and implementing that policy. The Board is authorized to make recommendations to the Governor and the Legislature concerning [ ]. Each year, the Board must report to the Governor and the Legislature with its assessment, comments and recommendations concerning [ ] programs, their 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.
In Advisory Opinion No. 97-27, the Commission considered whether a private attorney could sit on [a different] Board and engage in the practice of law before DEC. In that opinion, the Commission reviewed the powers of that Board, noting that its members are indemnified pursuant to a statute that provides for indemnification of members of a public entity; that it advises only the Governor and the Legislature, but not the DEC Commissioner; and that it has no decision making authority. The Commission held that a Board member was not prohibited from appearing as a private attorney before DEC.
The [ ] Board is like the [other] Board in many respects. They are both established within DEC. Their membership is almost identical. Both are chaired by the DEC Commissioner and have at least one other Commissioner as a member; both have twelve at large members appointed by the Governor, with six to be appointed on nomination of the same legislative leaders and six to be representative of various parties interested in the work of the Board.
The powers of both boards are quite similar, as they are to review State plans and policies in their respective areas of concern, and make recommendations to the Governor and the Legislature. Neither is given any advisory power with respect to the DEC Commissioner, nor is either empowered to make any final decisions.
Given these similarities, the Commission finds that the members of the boards should be treated similarly. These boards are fundamentally different from those considered by the Commission in Advisory Opinion Nos. 93-17 and 95-27, where it held that Board members could not appear before the agencies with which they were associated. Advisory Opinion No. 95-27 dealt with the Public Health Council, which, working closely with the Department of Health, makes significant final decisions in the setting of policy in its area of concern. Advisory Opinion No. 93-17 dealt with an appeals board which has the power to review and modify or reverse decisions of the agency Commissioner. In Advisory Opinion No. 97-27, the Commission distinguished these boards, based mainly on their powers, from the [ ] Board [it was considering], and it permitted members of the latter to appear and practice before DEC.
The [ ] Board is far more like the [ ] Board [considered in Advisory Opinion No. 97-27], given its membership and powers. The only substantive difference between the two, in addition to their different subject areas, is that members of the [latter] Board are indemnified as members of a public entity rather than as officials of the State. The law creating the [ ] Board has no similar provision; in fact, there is no statutory provision as to the indemnification of its members. However, this difference does not seem significant in view of the striking similarities between the [two boards].
Like the [ ] Board [considered in Advisory Opinion No. 97-27], the [ ] Board does not have any advisory responsibilities with respect to the DEC Commissioner; its advice is given only to the Governor and the Legislature. In addition, the [ ] Board has no decision making authority. Given its independence of DEC in its role as advisor to the Governor and Legislature, it is distinct from DEC. Without a close agency relationship, there is not the appearance of a conflict of interest in one of its members appearing or practicing before the agency. As the Commission concluded in Advisory Opinion No. 97-27, "[t]he 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."
Given the nature of the relationship between the [ ] Board and DEC, Public Officers Law §74 would not preclude [the requesting individual] from practicing as an attorney before DEC should he be appointed as a member of the Board. As he has recognized, he should not represent any clients before the Board.(2)
This opinion, unless and until 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,
Dated: July 15, 1998
1. [Footnote deleted].
2. The Commission today has issued Advisory Opinion No. 98-07 addressing the application of the ethics laws to members of advisory boards. The standards set forth there have been applied here.