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New York State Ethics Commission
Alfred E. Smith State Office Bldg.
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Albany, NY 12210


Advisory Opinion No. 06-07

Application of Public Officers Law §74 to certain employees of the Niagara Frontier Transportation Authority (“NFTA”) who wish to engage in outside employment on NFTA property for a contractor to the agency.


Introduction

The following advisory opinion is issued in response to a request from David Gregory (“Gregory”), General Counsel with the Niagara Frontier Transportation Authority (“NFTA”), who asks whether certain NFTA employees may engage in part-time outside employment as security guards with a contractor who is performing work at the airport that NFTA owns and operates.

Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission (“Commission”) concludes that NFTA police officers and other employees who oversee the contractor or have substantial responsibilities related to the contract may not accept the outside employment.

 

BACKGROUND

NFTA, a State public benefit corporation, owns and operates various transportation systems in the Niagara Frontier area including the Buffalo Niagara International Airport (“BNIA”), which is currently undergoing improvements to the airport’s main runway in a $35 million project.

Gregory states that the prime construction contractor on the BNIA runway project has offered outside employment as security guards for the project to NFTA police officers, who are assigned to work at the BNIA or at other locations, and to other employees assigned to work at the BNIA. The contractor is required to staff airfield security checkpoints during the life of the project. According to Gregory, the contractor does a great deal of work at the BNIA and, in addition to the runway project, is currently working on a roof replacement project at the BNIA’s Aircraft Rescue Firefighting building. The contractor also occasionally bids on work at other non-airport NFTA facilities and currently is performing a grouting project in the underground tunnels of NFTA’s light rail rapid transit system.

NFTA maintains a police force to ensure the safety of its transportation operations. NFTA police investigate crimes referred by and at the BNIA, conduct background checks required by the Federal Aviation Administration (“FAA”), execute arrest warrants, and participate in narcotics interdiction programs, among other responsibilities. NFTA police officers are assigned either to the BNIA or to other NFTA facilities such as the agency’s bus and subway properties. Assignments are provided twice per year with preference based on seniority. Officers assigned to non-airport facilities can be detailed to the BNIA in emergencies. According to NFTA, since police officers do change details, an officer currently assigned to NFTA’s subway operations may have had contact with the runway contractor during a previous assignment at the BNIA. Furthermore, NFTA police officers not assigned to the BNIA may be expected to have contact with the contractor on its non-airport work.

As explained by Gregory, NFTA employees assigned to the BNIA come into contact with the runway project work zone, the contractor’s employees, or the administration of the runway contract. NFTA’s concern is that, by having an employment relationship with the contractor, BNIA employees may be influenced in how they approach situations that may impact the contractor’s interest and how the dual employment would be perceived by the public.


APPLICABLE STATUTES

Portions of the State’s Code of Ethics, contained in Public Officers Law §74, are particularly relevant to the issue of whether NFTA employees may engage in outside employment for the project contractor. The provision that sets forth the rule with respect to conflicts of interest is found in subdivision (2), which reads as follows:

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.

Public Officers Law §74(3) recites the standards applicable to conflicts of interest for State officers and employees. Relevant to this discussion are the following subsections:

3. Standards.

a. No officer or employee of a state agency . . . should accept other employment which will impair his independence of judgment in the exercise of official duties.
. . . .
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

Police Officers:

In the case of NFTA police officers assigned to the BNIA, there would be an overlap between their obligations to their appointing authority and to the runway contractor. While engaged in security for a private contractor, an NFTA police officer would be under the control and supervision of the contractor, yet any improper activity or security lapses in the contractor’s operations would have to be identified and brought to the attention of NFTA. An issue of conflicting loyalties is therefore inevitable. Put simply, police officers at the airport overseeing the contractor and moonlighting for someone they oversee by day is not a situation that the ethics law permits. For these reasons, NFTA police officers assigned to the BNIA may not engage in outside employment for the runway contractor as security guards at the BNIA.

For NFTA police officers assigned to other locations, the concern of dual loyalty remains because their primary obligation in law enforcement matters is to NFTA. These police officers could be assigned to the airport in an emergency situation, and, although currently not detailed at the BNIA, they may have a future assignment there. In addition, police officers not assigned to the BNIA may well have contact with the contractor on its non-airport work for NFTA. Accordingly, police officers not presently assigned to BNIA may not accept the outside employment.

This conclusion is consistent with Commission precedent. In Advisory Opinion No. 97-24, the Commission held that State Liquor Authority (“SLA”) investigators, who are also defined as peace officers, could not as an outside activity hold franchises from sports associations that arrange for bars, clubs and restaurants to act as team host sites.

The Commission held:

It is fundamental that the ability of the SLA to enforce the governing laws and rules depends upon its investigators carrying out their duties responsibly, fairly and without favor, and that they be perceived as acting in such a manner. As the New York State Attorney General has said: "Public officials should avoid private employment which compromises their ability to make impartial judgments solely in the public interest. Even the appearance of impropriety should be avoided to maintain public confidence in government." (footnote deleted)

This principle is especially applicable to peace officers, who, like police officers, are held by law to particularly high standards of trust. (footnote deleted)

The Commission went on to state:

Since [the SLA employees] are peace officers, their judgments must be above any suspicion of being influenced by personal interests. This standard is inconsistent with their inspecting facilities associated with an organization from which they hold franchises. They have a personal financial interest in maintaining a good relationship with their franchisor, and that relationship could be perceived as being affected by the results of their inspections of sites that host franchisor-sponsored tournaments. Thus, neither [of the State employees] may inspect or conduct investigations with respect to any facility which is the site of [sports association] league play [as] it could be perceived that they would not be unbiased in conducting such an inspection or investigation. 1

The Commission is aware of a decision by the Conflicts of Interest Board for New York City (“COIB”) which authorized a New York City Police Department (“NYPD”) Paid Detail Program (“Program”) allowing New York City police officers to work part-time as security guards for private firms but under the supervision and control of the NYPD (see, COIB Advisory Opinion No. 98-4). In approving the Program, the COIB took into consideration that police officers would not have regular assignments with any participating firm and would not be able to establish a regular relationship with any particular employer and that “the Program will be subject to strict administrative controls and has been designed so police officers will not be able to develop a special relationship with any private firm.”

Unlike the New York City program, NFTA police officers would be in a position to establish a regular and special relationship with the contractor if permitted to accept the outside employment, and would be under the supervision and control of the contractor when performing their security-related duties, and not NFTA.

Notably, the New York State Police forbids any of its members from engaging in any outside employment “when the exercise of police authority is required in the performance of the employment or occupation . . . . Examples of prohibited occupations or kinds of employment are guard; watchman; private investigator; security officer . . . .”2

Other NFTA employees:

Generally, in assessing whether a State employee may engage in outside employment, the Commission looks to the provisions of Public Officers Law §§73 and 74.3 In analyzing whether a State employee may engage in an outside activity in conformity with Public Officers Law §74, the Commission considers several factors: the employee’s duties on behalf of the agency for which he or she works, the relationship of the agency and the employee to the proposed outside activity, whether the employee would be in a position to use his or her position to secure unwarranted privileges, and whether the outside activity would impair the employee’s independence of judgment in the exercise of official duties.

In Advisory Opinion No. 99-2, the Commission considered whether an employee of the Long Island Railroad (“LIRR”) could engage in part-time outside employment as a quality assurance engineer for contractors doing work for the Metropolitan Transportation Authority, and its affiliates and subsidiaries other than the LIRR. The Commission held that neither §§73 nor 74 would prohibit the individual from engaging in the proposed work but that he could not work for any contractor with which he has dealings on behalf of the LIRR.

In Advisory Opinion No. 97-22, the Commission prohibited a scientist employed by the State from serving as an outside consultant to a corporation which was funding research at the State laboratory which he headed. The Commission found that his dual relationship - one in his State position and another in his private work - would give rise to the appearance of a conflict of interest in violation of Public Officers Law §74.

This same principle was upheld in Scarduzio v New York State Ethics Commission (Supreme Court, Albany County, Special Term, 2003), which involved a State employee at the Westchester County Health Care Corporation who was responsible for supervising the delivery of hospital supplies, while at the same time employed as the on-site supervisor by the hospital’s sole source contractor responsible for the deliveries. The State employee not only had to enforce provisions of the contract against the interests of her second employer, but her presence was required at the hospital when a subordinate performed an audit of a delivery. The Court held that, because of the significant overlap in her duties and the divergent interests of the hospital and the contractor, it gave rise to an appearance of a conflict of interest to support a finding of a §74 violation.

For those NFTA employees who oversee the contractor or have substantial responsibilities related to the contract, the possibility of overlapping duties between the two employers is present. This situation could lead the public to question whether the outside employment would impair the independence of his or her judgment in the exercise of official duties, in violation of §74(3)(a). Should an NFTA employee accept a moonlighting position with the contractor, there would be the risk that his or her conduct would give reasonable basis for the impression that the contractor could improperly influence him or her or unduly enjoy his or her favor in the performance of official duties, in violation of §74(3)(f).

For other NFTA employees, the answer is not as clear and would depend on the particular employee’s duties for the agency and whether those duties involved specific responsibilities to the contractor or for the contract. For these employees, Gregory should work closely with the Commission staff to determine whether the outside employment is permissible under Public Officers Law §74.

 

CONCLUSION

Thus, the Commission concludes that NFTA police officers and other employees who oversee the contractor or have substantial responsibilities related to the contract may not accept the outside employment.

This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding.

Concurring:
Paul Shechtman,
Chair
Carl H. Loewenson, Jr.
Susan E. Shepard,
Members

Concurring in part and dissenting in part:
Robert J. Guiffra, Jr.
Lynn Millane

Under Public Officers Law §74(2), an employee of a State agency may not engage in outside employment that “is in substantial conflict with the proper discharge of his duties in the public interest.” (Emphasis added.) We respectfully dissent from the Commission’s decision to the extent that the majority broadly interprets Section 74(2) to bar Niagara Frontier Transportation Authority (“NFTA”) police officers who are not assigned to Buffalo Niagara Airport (“BNIA”) from engaging in outside employment as security guards for the runway contractor at BNIA.

We agree, as a prophylactic measure, that NFTA police officers assigned to BNIA should not moonlight as security guards at the airport. But, with respect NFTA police officers not assigned to the airport, the majority offers no concrete basis for its decision other than the speculation that such police officers “could be assigned to the airport in an emergency,” “may have” some “future assignment there,” or “may well have contact with the contractor on its non-airport work.” These theoretical justifications for a blanket ban on such outside employment cannot be squared with Section 74(2)’s requirement of a “substantial conflict” between outside employment and a State employee’s “proper discharge of his duties in the public interest.”

In this case, the public interest clearly would be best served if NFTA police officers not assigned to BNIA could be security guards at checkpoints for the runway project. There can be no doubt that trained NFTA police officers are among the most qualified to serve in this important role. Were cost not an issue, BNIA has advised the Commission that BNIA would have on-duty NFTA police officers guard these checkpoints. Whether on-duty or off, NFTA regulations require NFTA police officers to prevent and to report crimes, and such officers have all the necessary security clearances to serve as off-duty security guards at BNIA.

Rather than prohibit NFTA police officers not assigned to BNIA from ever serving as security guards at the runway construction project, the Commission should require that such outside employment cease when an officer is assigned to the airport or has regular contact with the contractor at non-airport NFTA facilities. We believe that this measured approach is more in keeping with the text of Section 74(2) and would better serve the public interest than the majority’s blanket ban.

Dated: September 21, 2006

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1. See also Attorney General Informal Advisory Opinion No. 89-30.

2. See Article 8, New York State Police Administrative Manual.

3. Section 73 is not at issue as the NFTA employees serving as security guards would not have to appear before any State agencies in carrying out their outside activity.



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