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New York State Ethics Commission
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Albany, NY 12210


Advisory Opinion No. 06-09

Application of Advisory Opinion No. 06-01 regarding job offers.


INTRODUCTION

The following advisory opinion is issued in response to a request submitted by Deputy Attorney General Richard Rifkin on behalf of [ ], [job title] in the Office of the Attorney General (“OAG”), who asks whether the restrictions contained in Advisory Opinion No. 06-01 apply to his pursuit of an employment opportunity with [an organization], a co-plaintiff with the OAG in several pending [ ] cases.

 

Pursuant to its authority under Executive Law §94(15), the New York State Ethics Commission (“Commission”) concludes that [the State employee] must adhere to the guidelines established in Advisory Opinion No. 06-01 and either must not pursue the job opportunity or wait 30 days after his recusal from all specific pending matters before him involving [the organization] to have employment-related communications with [the organization].


BACKGROUND

 The [OAG] enforces State and federal [ ] laws [ ]. As [job title], [the State employee] supervises and participates in [ ] litigation for the [OAG]. The [organization], [an organization] which pursues its goals, in part, through litigation, has asked [the State employee] to interview for the position of [ ]. Rifkin cites four examples of litigation in which [the organization] is aligned with the OAG as either a party to the action, or is acting as an attorney on behalf of private clients in companion cases with the [OAG’s] cases. Footnote Rifkin states that these cases represent a small fraction of the instances in which the OAG and [the organization] are involved in related cases. He states that many of the [OAG’s] “most significant” [ ] matters are being brought by a broad coalition of states working with a broad coalition of advocacy organizations.

 Rifkin states that any contact between the [OAG] and the [organization] would be through conference calls among the various plaintiffs for purposes of coordination, and that all communications with [the organization] would be conducted by [staff] in [the OAG]. If necessary, [OAG] staff would discuss matters with [the State employee].

 [The State employee] asks whether he must recuse himself from the cases in which the [the organization] is involved and wait 30 days before pursuing the job opportunity. He also asks whether his name may remain on a listserve that includes other interested Assistant Attorneys General, [the organization’s] officials and others.

 APPLICABLE STATUTES  

Portions of the State’s Code of Ethics, contained in Public Officers Law §74, are particularly relevant to post-government employment negotiations and job offers. 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.

 b. No officer or employee of a state agency . . . should accept employment or engage in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position or authority.

. . . .

 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

 In Advisory Opinion No. 06-01, the Commission noted that “the integrity of the government decision-making process may be jeopardized when a State employee has official responsibilities in connection with a non-governmental entity and is seeking or negotiating for employment with that entity.” Consequently, the Commission established guidelines for State employees to follow when approached by entities or individuals concerning potential employment opportunities. The Commission stated:

 [W]hen an entity (or individual) has a specific proceeding, application or other matter pending before a State employee, the solicitation of employment by the employee or any post government-related communication with that entity (or individual) is prohibited. Furthermore, the prohibition lasts until 30 days has elapsed since the pending matter was closed or decided or the employee has no further involvement because of recusal or reassignment.  

 Rifkin argues that there is no “specific proceeding, application or other matter pending” before [the State employee] or the [OAG]. It is the Commission’s understanding, however, that the lawsuits in which [the organization] is involved are open, pending cases within the [OAG], and, as [job title], [the State employee] is charged with supervision of them. The Commission further notes that, as co-plaintiff, [the organization’s] interests may not always be similar to the [OAG’s] on [certain issues].

 For these reasons, the Commission concludes that any pending case before the [OAG] which involves [the organization] as a party, or as counsel, is a “specific proceeding, application or other matter pending” before [the State employee], and the restrictions contained in Advisory Opinion No. 06-01 apply. This ruling means that should [the State employee] wish to pursue the position with [the organization] he must recuse himself from all participation, including discussion with [OAG] staff, in those matters which involve [the organization] and wait 30 days before entering into employment discussions with [the organization]. [The State employee’s] name should be removed from the listserve in those cases where it relates to litigation in which [the organization] is also involved.

 CONCLUSION

The Commission concludes that [the State employee] must adhere to the guidelines established in Advisory Opinion No. 06-01 and either must not pursue the job opportunity or wait 30 days after his recusal from all specific pending matters before him to have employment-related communications with [the organization].

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

      All concur:

                  Paul Shechtman,
                              Chair
                        Robert J. Giuffra, Jr.
                        Carl H. Loewenson, Jr.
                        Lynn Millane
                        Susan E. Shepard,

                            Members

 

 Dated: September 21, 2006

 


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