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New York State Ethics Commission
Alfred E. Smith State Office Bldg.
80 South Swan Street, 11th Floor, Suite 1147
Albany, NY 12210


Advisory Opinion No. 02-6

Whether a State employee may engage in outside employment with a federal agency which funds his State agency research. 


INTRODUCTION

This opinion is issued in response to a request from [ ] the Director of the Bureau of [ ] ("Bureau") for the New York State Department of Health ("DOH"). [The requesting individual] seeks permission to engage in outside employment with the Center for Disease Control and Prevention ("CDC") at its National Center for Chronic Disease Prevention and Health Promotion ("NCCDPHP") in Atlanta, Georgia.  The CDC funds [the requesting individual's] research at DOH.

Pursuant to the authority vested in it by Executive Law 94(15), the New York State Ethics Commission ("Commission") renders its opinion that [the requesting individual] may engage in outside employment with the CDC even though he is the principal investigator on two CDC grants awarded to DOH.

BACKGROUND

[The requesting individual] has been employed by DOH since [date].  He was appointed to the position of Director, a policymaking position, in [date].  In this position, he is responsible for management and supervision of all staff and programs relating to public health efforts regarding[various diseases and conditions].  He also functions as the primary liaison with State, federal and other funding sources; health care providers; consumers; public and private payers;educators; advisors and other interested parties.  He serves as a member of the Chronic Disease Prevention and Adult Health Management Team.  In addition, [the requesting individual] has administrative duties related to the Bureau's management including budget and report preparation, personnel planning and administration, space planning and participation in various cross-functional teams.

[The requesting individual] advises that DOH receives grant funding from CDC.  The Bureau, in particular, receives two substantial grants: a $7 million grant [ ], and an $810,000 grant [ ].  [The requesting individual] states he is named as the principal investigator on the grants. The principal investigator is CDC's contact person at DOH.  He is the signatory on the grant application, and is responsible for insuring that the activities funded actually occur and for filing progress reports on those activities.  However, [the requesting individual] indicates that he has no connection whatsoever to the grant approval process at CDC.  

The CDC is one of the major operating components of the U.S. Department of Health and Human Services.  According to its website, the CDC is recognized as the lead federal agency for protecting the health and safety of people - at home and abroad, providing credible information to enhance health decisions, and promoting health through strong partnerships.  The CDC serves as the national focus for developing and applying disease prevention and control, environmental health, and health promotion and education activities designed to improve the health of the people of the United States.  Its mission is to promote health and quality of life by preventing and controlling disease, injury and disability.  The NCCDPHP is one of twelve organizational components of the CDC.

[The requesting individual] is seeking approval for outside employment as a consultant for the CDC at its NCCDPHP in Atlanta, Georgia.1 This position is a continuation of work he performed in the past involving training on organizational development, education on policymaking and editing documents for public release.  His work consists primarily of technical writing and editing of scientific works and public awareness documents.  He conducts most of this ability from his home on evenings and weekends.    

APPLICABLE STATUTES

In assessing whether a State officer or employee may engage in outside employment, the Commission looks to the provisions of Public Officers Law 73 and 74.  Section 74 provides minimum standards against which State officers and employees are expected to gauge their behavior.  The rule with respect to conflicts of interest is contained in subdivision 2, and provides:

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.  These standards provide, in pertinent part:

(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.

DISCUSSION

The determination of whether a State employee may engage in an outside activity requires examination of the employee's duties and the employing agency's role relative to the outside activity.  In Advisory Opinion No. 95-9, the Commission permitted a policymaker to serve on the board of a not-for-profit corporation even though there were areas of common interest between the agency in which she worked and the corporation.  She was required to recuse herself from any board decision or vote concerning specific issues on which her agency would likely take a position.

Similarly, in Advisory Opinion No.

 

95-18, the Commission allowed a policymaking member of a State board to serve as a trustee of a foundation that made grants to institutions licensed by the State board.  The member was cautioned to recuse himself from any decisions of the board that affected or were directly related to any such grant.  In Advisory Opinion No.

 

97-25, the Commission also found recusal to be an option and permitted a State employee to serve on the board of directors of a not-for-profit agency which was licensed, regulated and financially supported by the employee's State agency because the employee in question performed no tasks relating to licensing, regulation or financing of outside agencies.  

By contrast, in Advisory Opinion No.

 

92-18, the Commission prohibited employees of the Department of Social Services, who were involved in the contract process, from serving on the board of a not-for-profit corporation that contracted with the agency.  

In Advisory Opinion No.

 

97-22, a somewhat analogous opinion to the current situation, the Commission prohibited a supervising research scientist employed by the Office of Mental Retardation and Developmental Disabilities from serving as a consultant to a private entity, a pharmaceutical company, that funded a State laboratory project he headed.  While recognizing that the subject of his State work was divorced from his role with the private entity, the Commission found that there would be the appearance of a conflict of interest prohibited by Public Officers Law 74 if the State employee was allowed to serve as a consultant to the pharmaceutical company while it was funding research at the State laboratory at which he was employed.  Therefore, the Commission concluded that the research scientist could not serve as a consultant to the company.  

Critical to the analysis in the current situation is that the CDC, as a governmental agency, does not present the same potential for an appearance of impropriety that would exist were a private entity involved.  This fact distinguishes the current situation from the one presented in Advisory Opinion No.

 

97-22.  The CDC, as the lead federal agency for protecting and promoting public health, has a public service mission complementary to that of DOH.  

By contrast, a pharmaceutical company, as a private for-profit entity, has as its primary concern the best interest of the corporation and its shareholders.  It may be in the corporation's interests to influence the agency by which it is regulated.  Similarly, research conducted by a governmental entity may impact the sale of the company's products.  There is no benefit to be gained by the CDC, outside of the work actually performed, in employing [the requesting individual] in this particular outside activity.  The fact that his outside activity involves technical writing at the NCCDPHP, is confined to an entirely separate unit of the CDC, and does not pertain to the work he performs with DOH provides additional structural safeguards.  Given these circumstances, the Commission finds that the precedent in Advisory Opinion No.

 

97-22 is distinguishable, and [the requesting individual] may engage in outside employment for CDC.

CONCLUSION

The Commission concludes that [the requesting individual] may engage in outside employment with the CDC, even though he is the principal investigator on two CDC grants awarded to DOH.

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.

All Concur:

Paul Shechtman, Chair
Robert J. Giuffra, Jr.
Carl H. Loewenson, Jr.
Lynn Millane
O. Peter Sherwood, Members

Dated:    September 26, 2002


Endnotes

1. [The requesting individual] has already received the aproval of his appointing authority in accordance with 19 NYCCC Part 932.

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