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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. 02-5

Application of Public Officers Law 74 to the outside activities of an employee of the State University of New York.


INTRODUCTION

The following advisory opinion is issued in response to a request submitted by [ ], former Dean of the College of [ ] and Vice President for [ ] at the State University of New York [ ] and current professor in its [ ] Department.  [The requesting individual] has authored two best-selling books related to health and diet.  The [ ] Library at SUNY - [ ] has established a website link from its "[ ] Links" to [the requesting individual's] personal, commercial website which markets his books. [The requesting individual] has asked the Commission to determine whether such a link violates the State's ethics laws.

Pursuant to the authority vested in it by Executive Law 94(15), the Commission renders its opinion that the Library may continue to maintain this link between its website and [the requesting individual's] personal, commercial website, so long as the Library follows the guidelines specified in the opinion.

BACKGROUND

[The requesting individual's] State Duties

When this opinion was requested, [the requesting individual] served as Dean of the College of [ ] and Vice President for [ ] at SUNY - [ ]. According to the Position Specifications, the Dean/VP "is responsible for uniting the faculty, staff, and resources of the College of [ ] to help lead the renewed institutional focus on research, develop the educational mission and enhance the clinical enterprise." In addition, the Dean exercises leadership in the program leading to the doctorate in [ ], including supervision of the curriculum and selection, evaluation, and mentoring of students and faculty. In consultation with others, the Dean establishes the College of [ ] research agenda, contributes to the enhancement of its [ ] mission and is responsible for its fiscal integrity.

[The requesting individual] has recently stepped down from his position as Dean/VP.  He currently serves as a Professor in SUNY - [ ] Department.1

Outside Activity

[The requesting individual] is the author of two best-selling books entitled [ ] and [ ].  The books are sold nationally and, during his personal time, he is actively involved in the marketing and promotion of the books.  In his letter of request, [the requesting individual] indicated that when he accepted the position at SUNY - [ ], he fully disclosed his commercial ventures and that the Campus President expressed approval indicating that it "would help our regional and national visibility, fostering our recruitment of faculty, staff and patients."

The Library has established a website link from its "[ ] Links" to the commercial website associated with [the requesting individual's] [ ] books.  According to [the requesting individual], the Library included their link without his knowledge. The Library commonly surveys [ ]-related websites and makes a determination whether to post a site based on a guiding set of principles established by the "[ ] on the Net Foundation."  According to the foundation website, the [ ] code "defines a set of rules to hold Web site developers to basic ethical standards in the presentation of information [and] help makes sure readers always know the source and the purpose of the data they are reading."  There are other commercial links from the SUNY - [ ] website that have no connection with SUNY - [ ] staff.

APPLICABLE STATUTES

Public Officers Law 74(2), the rule with respect to conflicts of interest, 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.  Standards applicable to the instant situation include the following:

. . . .  

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 that are in violation of his trust.      

DISCUSSION

Public Officers Law 74, the code of ethics, is concerned with both actual and apparent conflicts of interest, and it provides minimum standards against which State officers and employees are expected to gauge their behavior.  The code addresses the conflict between  an employee's obligation in public service and his or her private, often personal, financial interests.  As the Attorney General stated in a 1979 opinion applying Public Officers Law 742:

A public official must not only be innocent of any wrongdoing, but he must be alert at all times so that his acts and conduct give the public no cause for suspicion.  He must give no appearance of a potential conflict between his duties and personal activities even though an actual conflict is not present . . .

In assessing whether this proposed activity would conform with the standards set forth in Public Officers Law 74, the Commission looks to several factors: (i) the employee's duties on behalf of the agency for which he or she works, (ii) the relationship of the agency and the employee to the proposed outside activity, (iii) whether any potential benefit to the State employee arising from the proposed activity is also available to State residents and businesses generally, (iv) whether the employee would be in a position to use his or her position to secure unwarranted privileges, and (v) whether the outside activity would impair the employee's independence of judgment in the exercise of official duties.

Regarding the link between the SUNY -  [ ] website and [the requesting individual's] website, the Commission reviewed Technology Policy 96-8 issued by the New York State Office for Technology ("OFT").  The purpose of the policy is to "encourage State agencies to establish Internet sites and to make creative use of the Internet to facilitate customer service." The policy, which establishes guidelines for the overall consistency and coordination of State government Internet activities, notes that the "ultimate stewardship of New York's presence on the Internet rests with individual State agencies."  This policy states, however, that agencies should not provide links to private businesses, unless (a) all such businesses are provided equal access, (b) a formal business partnership has been approved, and/or (c) the reason for the link is primarily educational in nature.

The SUNY - [ ] policy dealing with the responsible use of its electronic information systems, does not directly deal with the appropriateness of connecting its website to certain other links. The policy does, however, contain provisions prohibiting the use of computers and network systems for commercial, political, and/or non-University purposes. Under that policy, SUNY - [ ] information technology ("IT") resources may not be used "to solicit sales for any goods, services, or contributions" unless such use conforms to the rules and regulations governing the use of its resources. SUNY -  [ ] IT resources may not be used to "represent the interests of any non-University group or organization unless authorized by an appropriate University department."  The policy also provides that use of SUNY - [ ] information systems or resources for personal, financial gain in connection with outside (non-University) consulting, business or employment is prohibited.  However, IT use in "conjunction with outside professional consulting, business or employment is permitted when expressly authorized and approved by the President of [the University]."

[The requesting individual's] website, in addition to marketing his books, also provides information on [ ] and its concept as a [ ] lifestyle alternative.  By applying the [ ] code, the Library believes that it has applied objective standards in determining whether to link its website to [the requesting individual's] site.  Further, and in conjunction with the OFT policy, this link, like many others on its website, serves an educational purpose.  The Library has significant interaction with the general public.  Its "[ ] Links" website should similarly serve as a broad-based information resource to the community.  SUNY - [ ] believes that the inclusion of a link to [the requesting individual's] website furthers this  principle.

The Commission does not wish to substitute its judgment for that of the Library in making determinations as to the content of its website, including which links are appropriate.  However, as a State employee, the appearance of [the requesting individual's]  name and a direct link to the [ ] website from the SUNY- [ ] website could create the appearance of a conflict of interest in violation of 74(2).  Other State officers and employees might similarly argue that they too, maintain personal websites offering information and/or goods or services of benefit to the public, and that such websites relate to the mission of their employing agency.  The State website is not intended to showcase the outside activities of State officers and employees for the personal or financial profit of these individuals.  In addition, linking a State agency website with the personal, commercial website of its officers and employees could in some circumstances constitute an unwarranted privilege on the part of such individuals in contravention of 74(3)(d).

Because there may be circumstances under which a State agency may seek to establish a link from its State website to the website of one of its own employees, the Commission believes that such a decision should be based on certain guidelines to avoid a violation of the ethics law. First, the State agency's website should include a disclaimer, as SUNY - [ ] does, stating that the link to such website does not represent an endorsement of the product, service or information contained therein. Second, the appointing authority should determine that the link is substantially and primarily educational, that creation of a link to a State employee's website does not favor State  employees over members of the public, and that any commercial benefit from the link to the State employee is incidental.                          

CONCLUSION

The Commission concludes that the Library may maintain a link between its website and [the requesting individual's] personal, commercial website, so long as the guidelines stated in this opinion are followed. 

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.

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 terms and conditions of [the requesting individual's] current assignment a still under negotiation.

2. 1979 Op. Atty. Gen 66
 

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