|Advisory Opinion No. 98-15:||Application of Public Officers Law §74 to two State employees who seek to accept royalties from sales of a workbook series which they have authored.|
The following advisory opinion is issued in response to a request from [a law firm], attorneys for [two individuals], who are both employees of the Department of Correctional Services ("DOCS") and who jointly authored a workbook series for people dealing with substance abuse addictions. The two employees ask whether they may accept royalties from sales of the workbooks.
Pursuant to the authority vested in it by Executive Law §94(15), the Commission hereby renders its opinion that [the two individuals] may accept royalties from such sales. However, they may not accept royalties from use of the workbooks by any State agency.
[Employee A] is employed by DOCS as its [title]. She is responsible for oversight of the agency's four shock incarceration correctional facilities. She is also the agency's Central Office Director responsible for the Willard Drug Treatment Center, which operates as a shock incarceration model. Her duties include, inter alia, the following: working with the Deputy Commissioner of Correctional Facilities in ongoing policy formulation, planning and development of rules, regulations and procedures for the Shock Incarceration Program; directing the supervision of shock incarceration correctional facilities and superintendents; monitoring and assessing program policies and procedures; developing shock incarceration program methods, procedures and activities; designing, developing and supervising shock incarceration staff training; and serving as liaison with other State agencies, including the Division of Parole, the Division of the Budget and the Office of Alcoholism and Substance Abuse Services ("OASAS").
[Employee B] is employed by DOCS as [title] at the Willard Drug Treatment Center. As such, she is responsible for the treatment program at Willard. She has overall responsibility for the development, implementation and review of treatment plans for individual clients; the development of new programs and activities that complement the goals of Willard; and working with OASAS, the Division of Parole and other State agencies.
The Willard Drug Treatment Facility is unique within DOCS. It is described in the 1998 Executive Budget as follows:
In 1995, the Willard Drug Treatment Campus opened as an alternative to incarceration for non-violent offenders whose crime is linked to substance abuse addictions. The 90-day program focuses on treatment for addictions, the development of self-discipline, and basic education skills - all essential components for success once participants return to the community.
The program offered at Willard is then outlined:
Additionally, the Department, in cooperation with the Division of Parole, began to operate the Willard Drug Treatment Center in Seneca County in 1995. Through this program, courts have the option to remand low level, nonviolent offenders to treatment - an option expected to stop the cycle of drug-related criminal activity at far less cost to the taxpayers than traditional incarceration.
While [the two State employees] are among those involved in the programs at Willard, they have, along with a third person, over the course of several years and outside of their work hours, written a workbook series called [title]. This series consists of 13 workbooks to serve addicted individuals who are in recovery. It is based on the 12 steps to recovery of Alcoholics Anonymous and Narcotics Anonymous.
A registered copyright to these materials was issued in 1996 in the name of [Corporation A], which is a corporation owned by [ ], the third author of the workbooks, and [Employee A]. The corporation is operated and managed by [the third author]. [Employee B] has no financial interest in the corporation.
[Corporation A] has issued a license to a separate corporation, [Corporation B], which would sell the product to New York State in the event that the State is interested. Neither [of the two State employees] have any ownership or other financial interest in this corporation; in the event that [the workbook series] is sold to DOCS, or any other State agency, through [Corporation B], neither would receive any payment or royalty from these sales.
[Corporation A] is seeking to market and sell the [ ] workbooks and related materials throughout the United State and elsewhere. Potential purchasers, other than DOCS, include correctional facilities, substance abuse treatment programs, commercial bookstores, adolescent programs and school based programs. [Corporation B] may seek to sell the [the workbook series] materials to DOCS.
By letter dated March 17, 1997, [the two State employees] requested an informal opinion of the Commission concerning the possible purchase of the workbook series by DOCS with no royalties to be received by them. In an informal opinion, dated June 23, 1997, the Commission, through its Executive Director, issued an informal opinion approving such purchases. However, it went on to note that the arrangements described presented a question that was not asked: can the employees receive royalties from sales to purchasers other than DOCS? The Commission proceeded to determine this question, and, citing several of its prior opinions, held that [the two State employees] could not receive royalties from any sales. It noted that DOCS might use the series for its agency training and that the series is not unrelated to their State duties. The current request seeks reconsideration by the full Commission.
The authors, in the materials, dedicate [the workbook series] to several individuals and groups of individuals. Among those are staff, inmates and parolees, about whom the authors say the following:
Thirdly, [the workbook series] is for the thousands of staff, inmates and parolees who have had the courage to accept the challenge of the Network, Alcohol and Substance Abuse Treatment (ASAT) and Shock Incarceration programs in the prison system. They tested the ideas here as they were being developed, and have proved, by continuing to practice the principles in their own lives, the power of Honest Open and Willing commitment. We learned a great deal from their dedication to learning, and for being willing to let us know what worked and what needed to be changed (emphasis in original).
The authors go on to offer their thanks and gratitude to DOCS' officials, including the Commissioner. They say:
Rev. Steve Chinlund, Bill Gard, Glenn Goord and Ron Moscicki have supported programs like this in the New York State prison system. They have been stalwart champions of this work.
Since issuing its informal opinion, the Commission has received a letter from DOCS' Commissioner, Glenn S. Goord, stating that he believes that the development of [the workbook series] was "not reasonably connected" to the duties of [the two State employees]. Noting their duties, he said that it was "not developed as part of these responsibilities."
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 respect to his or her public responsibilities. The rule regarding 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 interest. Of relevance to this inquiry are the following:
(b) No officer or employee of a state agency. . .should accept employment or engage in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position or authority.
. . . .
(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.
. . . .
(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 Commission first considered the matter of royalties paid to State employees based on their authorship of written materials in Advisory Opinion No. 89-10. The Commission determined in that opinion that Public Officers Law §74 did not preclude a State employee who was a policymaker from receiving royalties from the sale of a book which he co-authored as long as the following conditions were met:
The Commission has applied these standards in a number of formal and informal opinions. In Advisory Opinion No. 95-25, it held that attorneys employed by the Department of Environmental Conservation could not receive compensation for writing one or more chapters for a "New York Environmental Law Series" because the attorneys would be writing about the areas of law for which they were responsible. However, one attorney who was no longer assigned to, and did not anticipate reassignment to, the particular program about which he was to write was permitted to receive royalties since such writing would have been unrelated to the attorney's job responsibilities.
In Advisory Opinion No. 96-21, the Commission permitted a Department of Law employee to receive royalties for writing a book on criminal law and procedure, as the endeavor was unrelated to his job responsibilities for the Department and the book was written at home on his own time and with no use of State property or resources.
The Commission has similarly applied these standards in a number of informal opinions. For example, the executive director of a State agency asked whether he might accept compensation from a private company to edit and revise an article about issues under his agency's jurisdiction. The Commission denied the director's request to engage in the outside activity, concluding that one of his official duties was to inform the public about the statute that would be the subject of the article. In another opinion, an employee who provided supplemental education services for youths was permitted to accept a position as a consultant reviewer of textbook material for a private educational publishing company. The Commission noted that the target audience for the books to be reviewed was adults enrolled in literacy programs, and the skills to be used were those of a reading specialist, an expertise acquired by the individual before her State employment.
[The two State employees] argue that the informal opinion that was issued to them denying them the ability to accept royalties from any sales misapplied the two criteria on which the conclusion reached was based. That opinion looked to the criteria numbered as three and eight in Advisory Opinion No. 89-10. [The workbook series] was found to be not unrelated to their job responsibilities. It was also noted that the agency for which they work might purchase the materials.(1)
The authors submit that the creation of the workbook series was not part of their respective job duties. In support, they note that they developed the series on their own time and would not have been disciplined for failing to perform their duties if they had not created [the workbook series]. They also note that the Commissioner of DOCS has indicated that development of the series is not reasonably connected with their agency responsibilities. Moreover, they submit that a prohibition on the receipt of royalties from any source in the event that DOCS makes an independent determination to purchase or use the program constitutes an overbroad application of the restrictions of the Public Officers Law.
These arguments are not without weight, and they have prompted the Commission to re-examine its prior opinions in this area. Of the nine conditions set forth in Advisory Opinion No. 89-3, the interpretation of the third has created the greatest difficulty. It permits the receipt of royalties only where:
the subject matter was sufficiently unrelated to his job responsibilities so that authorship or the advice or material provided in the book could not be viewed as part of his job.
In re-examining this language and how it has been interpreted, the reason for the confusion becomes apparent. The first clause requires weighing whether the subject matter of the published work is "sufficiently unrelated" to a State employee's job responsibilities; the second requires looking at whether it is viewed as "part of his job."
Experience has demonstrated that these dual standards can be confusing. However, such confusion does not arise when a work is developed as part of an employee's job responsibilities -- such a work clearly does not meet the test for the acceptance of royalties. An employee is paid by the State for carrying out his or her public duties. Where authoring materials is within those duties, the employee should not receive additional compensation. In addition, if an employee were to receive payment from a private source for engaging in his or her State job, the public could reasonably question whether the employee is acting in the public interest or in the interests of the individual or entity offering the additional compensation.
The confusion with regard to the above paragraph has arisen in the past where materials that are authored by a State employee are related to the employee's job but are not part of his or her official duties. The first clause of the quoted paragraph, when read alone, would appear to bar royalties in such a situation. However, this clause should be read in the context of the entire paragraph. This means that job relatedness, alone, should not be the standard for prohibiting the receipt of royalties. The prohibition arises only when the job relatedness of a published work is used to demonstrate that it is part of an employee's job duties. To the extent that prior opinions might be read differently, they are overruled.
In the matter before the Commission, the question of whether the creation of the workbook series [ ] was part of [the two State employees]'s respective job duties is a close one. They were both involved in substance abuse treatment programs for which DOCS was responsible. In the dedication contained in their workbooks, they included DOCS' staff as well as the inmates and parolees who tested their ideas. They also thanked several high level DOCS officials for their support of the program. Yet, the Commissioner of DOCS has represented to the Commission that the development of the series is not reasonably connected with the agency responsibilities of [the two State employees]. He said that their job is "to supervise, manage and direct others." The development of [the workbook series] is not within these responsibilities. In addition, [the two State employees] apparently developed the materials on their own time, although, as noted, they tested their concepts on inmates.
In weighing these considerations, the Commission places emphasis on the undisputed fact that the development of [the workbook series] was not assigned to [the two State employees] by their agency, nor was it expected of them by their agency. It would have been preferable for them to have avoided testing the ideas on inmates or consulting with DOCS' officials knowing that they intended to seek private gain. However, based on the test set forth above, the Commission concludes that the creation of the workbook series [ ] was not part of [the two State employees]'s respective job duties. Thus, the previously issued informal opinion incorrectly denied them the right to receive royalties based on the materials having been job related.
The informal opinion also considered the eighth condition set forth in Advisory Opinion No. 89-10, which bars the receipt of royalties if the employing State agency uses the published book or materials, or makes them available as part of its training programs. Here, again, the phrase cannot be read alone. It must be read in conjunction with the third condition, discussed above. Use by the agency employing the author should serve as a bar to royalties when the author, as part of his or her job duties, prepares the materials for agency use; that is, the development of the materials is for an agency purpose. This reading of the eighth condition makes it consistent with the third condition, discussed above.
This situation is to be distinguished from that where a State employee, working on his or her own time and outside of his or her duties, writes a book or materials for general consumption, or for general use by those in a particular field. A decision by the employee's agency that the work would be useful for the agency should not bar the author from receiving royalties from sales elsewhere. Otherwise, an author may be barred from receiving royalties from a work of sufficient quality that it is useful to his or her agency, while another author who writes a work of lesser quality, which is of no interest to the agency, could receive royalties. Consequently, [the two State employees] may receive royalties from outside sales.
With this determination, the Commission must consider whether royalties may be received from sales to an employee's agency or to any State agency.(2) For guidance, the Commission looks to Public Officers Law §73(4)(a), which bars a State employee from selling goods or services valued at more than twenty-five dollars to any State agency absent competitive bidding. A State employee who sells a published work to a State agency for royalties would be in violation of this provision, as there could not be competitive bidding for a unique work. However, permitting an agency to use the work without compensation to the author would not constitute a sale, and would, therefore, not be violative of the statute. Thus, State employees, such as [the two State employees], may not receive royalties from the use of their published materials by any State agency, not just their employing agency.
Finally, Public Officers Law §74(3)(b) bars State officers and employees from engaging in any business activity which requires them to disclose confidential information gained by reason of their official position or authority. That standard has particular relevance here -- a State employee may not take advantage of his or her insider knowledge of State information or policies to gain personally from publication of information that is not otherwise a matter of public record. There is no indication that [the two State employees] have misused confidential information, but the Commission wishes to alert future authors that any such misuse would be considered a serious violation of their responsibilities as State employee.
The Commission concludes that [the two State employees] may accept royalties from sales of the workbook series which they have authored, as it was not developed as part of their job duties or specifically for agency use. However, they may not accept royalties from use of the workbooks by any State agency. Future authors are warned that they may not disclose in any book, article or publication confidential information gained by reason of their State position or authority.
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, Chair
Robert J. Giuffra, Jr.
Henry G. Gossel
O. Peter Sherwood, Members
Dated: November 23, 1998
1. There is no question that of the nine criteria set forth in Advisory Opinion No. 89-10, all but these two are satisfied.
2. [The two State employees] have agreed not to accept royalties from any sales that may be made to any New York State agency.