|Advisory Opinion No. 98-10:||Whether Public Officers Law §74 prohibits a member of the CUNY Board of Trustees from continuing to serve as an adjunct instructor at one of the CUNY colleges.|
The following advisory opinion is issued in response to a request by Kathleen M. Pesile ("Pesile"), who was recently appointed as a member of the Board of Trustees of the City University of New York ("CUNY"). She asks whether she may continue to serve as an adjunct instructor at the College of Staten Island ("College").
Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") renders its opinion that Pesile may continue her twenty years of service as an adjunct instructor as long as she, when acting as a Trustee, recuses herself from the matters noted in the opinion. In addition, she may not use her position as a Trustee to gain undue advantage in her relationship with the College.
Pesile was recently appointed as a member of CUNY's Board of Trustees.
Since September 1978, Pesile has served as an adjunct instructor at the College, which is a senior college in the CUNY system. She is employed full-time in the private sector, but she has been an instructor in the College's Evening/Weekend Division ever since the Division's inception twenty years ago. In this position, she has lectured in economics and finance-related courses to part-time adult students, as well as to local community financial services professionals seeking continuing education credits required to maintain their professional licenses. Generally, she has taught one or two courses each semester depending upon class enrollment, but there have been semesters when she has not taught at all due to a lack of enrollment.
Pesile describes her relationship with the College as that of an independent contractor, although she has no written contract with the College. In conversation with Commission staff, she stated that she receives no health insurance, retirement, sick or annual leave accruals, or any other employee benefit. As an adjunct instructor, she does not hold membership in any faculty bargaining unit. She participates in neither institutional policy nor procedural decisions. Based on these facts, Pesile argues that she has no interest in any issues that may come before the CUNY Board of Trustees pertaining to the employment status of adjunct instructors or how their status may be related to that of tenured full-time faculty.
The question she poses is whether she may continue to serve as an adjunct instructor at the College now that she is a Trustee of CUNY.
Public Officers Law §74(2), the code of ethics for State officers and employees, includes the rule with respect to conflicts of interest as follows:
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:
(a) No officer or employee of a state agency . . . should accept other employment which will impair his independence of judgment in the exercise of official duties.
. . . .
(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.
. . . .
Section 74 is concerned with both actual and apparent conflicts of interest. It provides minimum standards against which State officers and employees are expected to gauge their behavior, addressing the conflict between an employee's obligation in public service and his or her private, often personal, financial interests.
In its analysis of Pesile's request, the Commission must consider whether she, by virtue of her position as a member of CUNY's Board of Trustees, might receive favorable treatment by the College, either in compensation, benefits or continued relationship in possible violation of Public Officers Law §74(3)(d) and (f). It must also consider whether, because of her status as an adjunct instructor, there might be an appearance that positions she takes as a Trustee would inappropriately favor adjunct instructors or the College or the department that retains her, in possible violation Public Officers Law §74(3)(a) and (h).
With regard to the first issue, the Commission has not previously issued any opinion that is directly on point. Clearly, it would be concerned whenever an individual holds a position that is responsible for the management of an agency and, at the same time, is employed by the agency. However, it need not decide at this time whether such a situation would be prohibited in every circumstance. Here, the facts show that there is not an employment relationship between Pesile and the College.
As noted above, Pesile has been an adjunct instructor with the College for more than twenty years, ever since the inception of the College's Evening/Weekend Division. Her engagement, over the years, has been dependent solely on enrollment. She receives no employee rights or benefits. Given these facts, the Commission holds that her continued service as an adjunct instructor is not barred by her having become a CUNY Trustee. However, Public Officers Law §74 does place certain restrictions on her.
With regard to the appearance that Pesile might take positions as a CUNY trustee based on her position as an adjunct instructor, the Commission notes that violations of §74 can often be avoided by disclosure and recusal. (See, e.g., Advisory Opinion Nos. 92-11, 92-16 and 96-3.) The Attorney General has noted that there is a need for recusal on the part of a County Legislator with regard to any matter concerning the salary and terms and conditions of county employees where his wife is employed by the County (Attorney General's Informal Opinion No. 87-9). Here, Pesile, as a Trustee, could be in a position to affect her own status as an adjunct instructor.
Therefore, to avoid a conflict of interest or the appearance of a conflict, Pesile should disclose to the Trustees her teaching position with the College and recuse herself from any discussion or vote on any matter that will affect her personally in her position as an adjunct instructor. While the Commission cannot predict every situation that might require disclosure and recusal, the critical factor is whether she could personally and directly benefit from a matter before the Trustees. If Pesile has an interest, the provisions of Public Officers Law §74 require that she recuse herself.(1) She is welcome to seek the further advice of the Commission should a specific matter be presented.
The Commission concludes that Pesile may continue to serve as an adjunct instructor subject to the conditions set forth in this opinion.
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.
Paul L. Shechtman,
Evans V. Brewster
Henry G. Gossel
O. Peter Sherwood,
Dated: July 15, 1998
1. In addition, she may not use her position as a Trustee to gain undue advantage in her relationship with the College.