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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. 04-3:

Whether the Commission’s regulation on outside activities prohibits a policymaker from serving as a member of the board of directors of a local political club.


INTRODUCTION

The following advisory opinion is issued in response to a request submitted by [a State employee] with the Office of the State Comptroller (“OSC”), who serves as a board member of a local political club. She asks whether the Commission’s outside activity regulations, which prohibits a policymaker from serving as an “officer” of a political party or political organization, applies to her service as a member of the board of directors of the political club.

Pursuant to the authority vested in the New York State Ethics Commission (“Commission”) by §94(15) of the Executive Law, the Commission concludes that [the State employee’s] service as a member on the board of directors is the equivalent of her serving as an officer of the political club and is precluded by Commission regulation.

BACKGROUND

[The State employee] is [ ] in OSC’s Investigations Division which investigates fraud and corruption throughout the State. She reports to the [job title] and currently supervises [ ] and [ ]. She works closely with the investigative staff as well as other OSC divisions, such as the auditing division, in order to detect and expose the misuse of public funds. She serves as liaison to prosecutorial and other law enforcement agencies. [The State employee] also handles ethical issues that arise within OSC by providing lectures and written ethics opinions for the agency. Based on the foregoing, she has been designated a policymaker by her appointing authority.

[The State employee] is presently serving as a member of the board of the [ ] Association, Inc. (“Association”), of which there are approximately fifty board members.1 As an organization, the [ ] Association seeks “to advance democratic principles, support candidates for public office, and to encourage and stimulate the active participation and interest of persons in political activities.” (See, [ ] Association Bylaws, Article I.) The [ ] Association is involved in local political races in Queens and New York City; its activities include circulating petitions, participating in phone banks, and distributing campaign literature for candidates. [The State employee] states that officers, board members, and general members engage in these activities.

According to its Bylaws, the [ ] Association is managed by a board of directors which may adopt rules and regulations for the conduct of its meetings and management of its affairs (see, Article IV). Board members are elected annually by the general membership at each annual meeting. The officers of the [ ] Association consist of a president, an executive vice president, five vice presidents, a treasurer, an assistant treasurer, a secretary, an assistant secretary, and such other officers as the board may determine. The officers shall perform all duties as may be prescribed by the board of directors. (See, Article V.) There are also designated two executive members who are the elected District Leaders of the [ ] Party for the [ ] District and who serve ex officio as members of the board. (See, Article VI.)

As a member of the board, [the State employee] asserts that she performs ministerial functions which do not encompass the exercise of any significant authority or the execution of specific tasks that would conflict with the discharge of her obligations as a State employee. She states that should any matter arise at the [ ] Association where her participation would create an appearance of a conflict of interest or an actual conflict, she would recuse herself from the [ ] Association matter. [The State employee] states that she will abide by the Commission’s ruling but argues that prohibiting her from serving as a board member of a local political club in her community suggests an unnecessary infringement on her rights.

APPLICABLE STATUTES

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 of interest 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.

The Executive Law gives the Commission the authority to regulate the “outside activities” of persons subject to its jurisdiction. (See, Executive Law §94[16][a].) 19 NYCRR Part 932.2, entitled “Restriction on policy makers and certain others holding positions of officer or member of political party organizations”, provides:

(a) No head of a State department, individual who serves as one of the four statewide elected officials, individuals who serve in a policymaking position . . . shall serve as an officer of any political party or political organization.

A “political organization” is defined as “any organization that is affiliated with or subsidiary to a political party, and shall include, for example, partisan political clubs (emphasis added). Political organizations shall not include an organization supporting a particular cause with no partisan inclination, for example, the League of Women Voters, and shall not include campaign or fund-raising committees.” (19 NYCRR Part 932[f])

DISCUSSION

While there is no fundamental prohibition on State officers and employees engaging in political activities such as holding public office, campaigning or fund-raising in support of a candidate, such activities must not be in violation of Public Officers Law §74, the Code of Ethics (see, e.g., Advisory Opinion Nos. 92-1697-4 and 98-12).  

For individuals designated as policy-makers, however, these activities constitute an outside activity for which certain restrictions apply and prior approval may be required, pursuant to the Commission’s regulations (19 NYCRR Part 932). Thus, for example, a policymaker is required to have both agency and Commission approval before holding any other public office (see, 19 NYCRR Part 932.3[b] and 932.4).

As a policymaker, [the State employee] is barred from serving as (a) an “officer” of any political party or political organization (19 NYCRR Part 932.2[a]). [The State employee] does not contest that the [ ] Association is a partisan political club falling within the definition of a political organization. The narrow question before the Commission is whether [the State employee’s] service as a member of the board of directors of the political party club is the equivalent of her serving as an officer and thus precluded by the Commission’s regulation.

When the regulation was proposed in 1990, it was intended to limit policymakers from serving in political party leadership positions in order that their State positions not be influenced by political party loyalties (see, Commission letter dated March 13, 1990 responding to comments on the proposed regulation).2 The regulation was based on Executive Order No. 3 of Governor Cuomo, which established the Board of Public Disclosure (“the Board”) and precluded certain State government officials from serving as officers of any political party or political organization, or serving as members of any political party committee, including political party district leader or members of a political party’s national committee.3

The Board issued guidelines regarding the effect and intent of the Executive Order which stated in part:

C. Political Party Positions

The Executive Order requires covered individuals not to serve as officers of political organizations or as members of any political party committee. Based on the wording of the Executive Order, the Board has required covered individuals to resign from national, state, county, and town political committees. . . . The Board has also defined a “political organization” to include all organizations that are affiliated with or are subsidiaries of political parties. Under that definition the Board has found that political clubs and organizations such as the New Democratic Coalition are political organizations. Accordingly, covered individuals have been asked to resign from the board of directors of such organizations. (See, Guidelines of the Board of Public Disclosure at pg. 2.)

Since the regulation’s enactment, the Commission has advised individual policymakers to resign from holding office in a political party organization. The issue of whether the ban from serving as an “officer” of any political party or political organization extends to members of the board of directors of a local political club has never been addressed.

Black’s Law Dictionary defines a “board of directors” as the governing body of a corporation elected by its shareholders that is usually made up of the officers of the corporation which constitutes the executive representatives of the corporation. An “officer” is defined as a person holding an office of trust, command, or authority; in corporations, it is a person charged with important functions of management, responsible for the regular day-to-day operations designated by a title, such as president, and chosen by the board of directors. (14A NY Jur 2d, Business Relationships §520.)

Given that the business of the [ ] Association is managed under the direction of the board of directors and the officers perform the duties as prescribed by the board of directors, the Commission concludes that, for purposes of interpreting Part 932.2, the term “officer” is the regulatory equivalent to serving as a member of the board. To hold otherwise would create a paradox within the regulation by permitting a member of the board of directors who (as here) may wield more authority within the organization to retain his or her position while requiring an officer to resign. This conclusion is consistent with the guidelines of the Board after which the Commission’s regulation is modeled.

Thus, [the State employee] is prohibited from serving as a board member in a partisan political club and should resign her position on the board so that she is in compliance with the Commission’s regulation. The Commission does not intend to abridge [the State employee’s] right to affiliate with a political party or partisan political club, as evidenced by the fact that she may remain a member of the [ ] Association. The separation of a policymaker – particularly someone who has significant legal, investigative duties – from an authoritative position in a partisan political club is a rational determination to reduce conflicts of interests grounded in partisan politics within the executive branch of government.

CONCLUSION

The Commission concludes that [the State employee] must resign her position as a member of the board of the [ ] Association as it is the equivalent to being an officer in a political party organization which is prohibited by Commission regulation.

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.

Concurring:

Paul Shechtman, Chair
Robert J. Giuffra, Jr.
Lynn Millane
Susan E. Shepard, Members

Dissenting:
Carl H. Loewenson, Jr., Member

Dated: May 19, 2004 


End notes

1. [The State employee] has been involved with the [ ] Association since 1993. In the past, she has served as a regular member and as an officer (treasurer).

2. Courts have upheld laws limiting the partisan political activity of high-ranking city officials and public servants charged with substantial policy discretion. See, Golden v. Clark, 76 N.Y.2d 618 (1990)[City Charter provision forbid city officers or other public servants from serving as a member of a national or State political party committee, or chair or officer of a county committee or executive committee]; Belle v. Town Board, 61 A.D.2d 352 (4th Dept. 1978) [forbidding town officers, employees or members of administrative boards from holding certain positions in political parties]. Federal regulations that implement the Hatch Act prohibit certain employees from serving as an officer of a political party, and serving as an officer or member of a committee of a partisan political group. 5 CFR 734.409(d).

3. The Board is no longer in existence.
 

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