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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. 06-02

Whether a State employee, who serves as a uncompensated member of the board of directors of a not-for-profit agency under contract with another State agency, may orally communicate with the State agency on the merits of a contract dispute.


Introduction

The following advisory opinion is issued in response to an inquiry from Linda Hunt ("Hunt"), Assistant Counsel with the New York State Office of Temporary & Disability Assistance ("OTDA"), who asks whether a State employee, who in her private capacity serves as the unpaid President of the board of directors of a not-for-profit agency, may communicate with OTDA concerning the merits of a contract dispute.

Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") concludes that Public Officers Law §73(12) prohibits the State employee from orally communicating with OTDA staff regarding the contract dispute.

BACKGROUND

OTDA’s Bureau of Refugee and Immigration Affairs ("BRIA") directs federal funds and State resources to local agencies which assist legal immigrants in achieving economic and social self-sufficiency while they assimilate to life in the United States. BRIA contracts with local providers and for many years it has contracted with the [ ], a not-for-profit agency. Last April, however, [a not-for-profit] suspended its services and submitted its final contract voucher to OTDA.

In the course of meetings between [a not-for-profit’s] executive committee and OTDA concerning repayment of disallowed costs, Hunt learned that the President of [a not-for-profit’s] board is [ ], a State employee with the Department of Economic Development ("DED"). 1 [The State employee] receives no compensation for serving as President and her position on the board is unrelated to her position with DED. According to BRIA staff, [the State employee] has taken an active role in meetings with OTDA by questioning the State agency’s decisions.

Hunt asks whether [the State employee’s] appearance in her capacity as President of [the not-for-profit] before OTDA violates Public Officers Law §73.

APPLICABLE STATUTE



Public Officers Law §73(7)(a) states:
No . . . state officer or employee, other that in the proper discharge of official state and local governmental duties . . . shall receive, directly or indirectly, or enter into any agreement express or implied for, any compensation, in whatever form, for the appearance or rendition of services by himself or another in relation to any case, proceeding, application or other matter before a state agency where such appearance or rendition of services is in connection with:

(i) the purchase, sale, rental or lease of real property, goods or services, or a contract therefore, from, to or with any such agency;

(ii) any proceeding relating to rate making;

(iii) the adoption or repeal of any rule or regulation having the force and effect of law;

(iv) the obtaining of grants of money or loans;

(v) licensing; or

(vi) any proceeding relating to a franchise provided for in the public service law (emphasis added).

Public Officers Law §73(12), states in relevant part, that:
A . . . state officer or employee . . . who is a member, associate, retired member, of counsel to, or shareholder of any firm, association or corporation which is appearing or rendering services in connection with any case, proceeding, application or other matter listed in paragraph (a) or (b) of subdivision seven of this section shall not orally communicate, with or without compensation, as to the merits of such cause with an officer or employee of the agency concerned with the matter (emphasis added).

DISCUSSION

Public Officers Law §73(12) prohibits a State officer or employee, who is a member, associate, retired member, of counsel to, or shareholder of any firm, association or corporation which is appearing or rendering services in connection with any matter covered by §73(7)(a) from orally communicating as to the merits of such cause with an officer or employee of the State agency concerned with the matter, whether or not compensation is received.

Commission precedent interpreting §73(12) is Advisory Opinion No. 95-43. There, an engineer with the Department of Environmental Conservation ("DEC") was assisting a lakefront association, of which he was a member, in applying for a dam repair permit before DEC’s Bureau of Flood Protection. Since the engineer would not be compensated for his work, the Commission held that the DEC employee was not precluded by §73(7)(a)(v) from appearing before DEC, but was prohibited from orally communicating with the senior DEC engineer handling the application or any other DEC officer or employee under §73(12).2 The Commission reasoned that, unlike §73(7)(a), §73(12) does not require compensation for its restriction to be applicable.

While Public Officers Law §73(7)(a) only bars a State officer or employee from receiving compensation from private parties for appearing or rendering services "in relation to any case, proceeding, application or any other matter" before a State agency where such appearance or rendition of services is in connection with six broad areas of activity identified therein, including contracts with a State agency, §73(12) is clearly meant to prohibit oral communications whether or not compensation is received. Thus, while [the State employee] would be permitted to submit, without compensation, a written statement to OTDA, any oral communications with OTDA staff concerning the merits of the contract dispute are prohibited by §73(12).

CONCLUSION

The Commission concludes that [the State employee] is prohibited under §73(12) from orally communicating with OTDA concerning the contract dispute.

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
Susan E. Shepard,
Members

Dated: April 27, 2006

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1 Two other [not-for-profit] board members are also State employees.

2 The Commission found that §74 did not bar the DEC engineer from engaging in the outside activity of assisting the association in its application for a permit issued by his employing agency because, in his DEC capacity, he had no involvement with such permits.

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