|Advisory Opinion No. 98-16:||Whether Public Officers Law §74 prohibits a State employee from receiving compensation for teaching a training course that is part of his job responsibilities.|
The following advisory opinion is issued in response to a request by [a State employee] and the New York State Department of Transportation ("DOT"). They both ask whether [the State employee], who is a DOT employee and an agency expert in worker safety, may, as an outside activity, receive compensation for teaching a ten-hour OSHA training course.
Pursuant to the authority vested in it by Executive Law §94(15), the Commission renders its opinion that [the State employee] may not engage in the proposed outside activity for compensation.
[The State employee] is employed by DOT as [job title] in the [agency]. According to the job description for his title, he organizes, develops, coordinates and supervises a regional employee health, safety and accident prevention program; and he coordinates/conducts safety training meetings with management, supervisors and employees. In essence, [the State employee] is DOT's regional in-house OSHA safety expert. He performs, in part, the following duties with respect to regional safety training:
[The State employee] has recently been asked to teach an OSHA ten hour training course in the following circumstances. [A private company] has obtained a contract to provide the training course in the private sector. However, as [the private company] is owned by a single individual, it has, by subcontract, retained [a not-for-profit organization] to conduct the training. [The not-for-profit organization] is a non-profit organization of unions and individuals from the [ ] area that provides training programs and workshops on a variety of job safety and health issues. [The not-for-profit organization] would like to employ [the State employee] to teach the course. Under the proposed arrangement, [the State employee] would be paid by [the not-for-profit organization]. In conversation with the Commission staff, [the State employee] has stated that he has no involvement with [the not-for-profit organization] as a DOT employee.
[The State employee] has informed the Commission that the part of the ten-hour course he would teach concerns Personal Protective Equipment ("PPE"). He would teach one hour per week during regular State working hours. He would make no recommendations as to a specific brand of PPE; instead, he would instruct as to the type of PPE required for specific tasks. [The State employee] would not know the identity of the class participants prior to the day the course began, although it is likely that many attendants would be affiliated with the trade unions that represent electricians. It is possible that the participants would include employees of DOT contractors.
According to [the State employee], the instruction that he would provide is similar to the type of instruction he provides at DOT, although his private training would involve generic OSHA standards that could be applied in any setting. While [the State employee]'s primary responsibility at DOT is to train agency employees with regard to safety requirements, including those mandated by OSHA, his services could be requested by a DOT contractor with respect to a DOT project. Such a request would not come directly to [the State employee], but would be made to the DOT project engineer-in-charge or the regional construction safety officer.
The Commission has been informed that the current Commissioner of Transportation encourages "partnering," whereby DOT endeavors to assist businesses, municipalities, highway departments, unions and the citizens of the State. The agency has stated that if a request were made, it would, pursuant to its partnering policy, make [the State employee] available to teach a safety training course. He would teach such a course as part of his official duties.
In Advisory Opinion No. 98-15, issued contemporaneously with this opinion, the Commission discussed the conditions that must be met for a State employee to receive royalties for authoring published materials. In that opinion, the Commission clarified prior opinions that it had issued related to this topic. It maintained its previous determinations that a State employee cannot receive royalties when a work is developed as part of his or her job responsibilities, observing that:
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 same considerations apply here. From the facts set forth above, the Commission finds that the [the not-for-profit organization] training program is the type that [the State employee] conducts in his State position. DOT has stated that, if asked, it would assign [the State employee] to conduct the identical program. It is possible, and even likely, that some of those who would attend the course [the State employee] would teach for [the not-for-profit organization] are the same individuals [the State employee] would teach in his public capacity as trainer of employees of DOT contractors. Therefore, the Commission concludes that [the State employee] may not provide the training as a compensated outside activity. It is the type of training that he performs for DOT.
The Commission concludes that [the State employee] may not, as a compensated outside activity, teach the safety training course.
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