Advisory Opinion 92-10 Application of Public Officers Law §74 to parole officers of the Division of Parole who wish to act as members of Local Conditional Release Commissions.
The following advisory opinion is issued in response to an inquiry from the Public Employees Federation ("PEF") and the State Division of Parole ("Division") concerning application of Public Officers Law §74 to Division parole officers who wish to serve as members of Local Conditional Release Commissions ("LCRCs"). LCRCs are entities formed at the county level and charged with determining which local inmates are to be released to supervision by county probation departments. The Division denied the parole officers' requests to serve as LCRC members for conflict of interest reasons. PEF challenged that decision by filing an improper practice charge against the Division. Both parties now seek the Commission's opinion on the conflict of interest question.
Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by Executive Law §94(15), the Commission hereby renders its opinion that there is no Public Officers Law §74 violation for a parole officer to serve as a member of an LCRC. However, because the potential exists for a parole officer to be, or appear to be, inappropriately influenced by information or opinions concerning an inmate/parolee obtained by serving on an LCRC, Public Officers Law §74 requires Division parole officers to recuse themselves at the State level from matters relating to inmate/parolees with whom they have had official contact as members of an LCRC and at the LCRC level from matters relating to inmate/parolees with whom they have had official contact as parole officers. The Division of Parole is responsible for determining whether its parole officers can meet their State responsibilities given the time demands of serving on LCRCs and the requirement for such recusals.
The Division, established by Executive Law §259, is the State agency responsible for community protection and offender risk control through the administration of parole services. The Division's staff helps prospective releasees and parolees secure employment, educational or vocational training, and suitable residential arrangements. (Executive Law §259-a.) The Division is responsible for the reintegration of parolees into the community and, through surveillance of parolee activities, seeks to detect and prevent renewed criminal behavior.
Executive Law §259-b creates within the Division the Board of Parole an administrative body of not more than 19 members appointed by the Governor with the advice and consent of the Senate. The Board makes parole release decisions for State prisoners, sets conditions of release, and has the power to revoke parole. The Division, through its institutional, field and administrative staff, maintains records on prospective releasees and parolees and prepares reports required by the Board.
The Division's parole officers supervise State inmates released on parole or conditional release. Parole officers are assigned to area field offices, correctional facilities or temporary release units within geographic regions of the State.See endnote 1 The parole officers in the area field offices provide supervision, guidance and control over an assigned caseload of parolees, assist in the resolution of their problems and determine their conditions of parole and degree of compliance. A parole officer:
[p]articipates in preliminary and final revocation hearing and other legal proceedings in order to present and support charges of violations in accordance with legal mandate. Represents the interests of the State by serving in effect as prosecutor on behalf of the Division.See endnote 2Decisions by the Board of Parole depend largely on information and analyses provided by these officers.
Through recent amendments to the Penal Law and Executive Law,See endnote 3 responsibility for the release and supervision of local inmates shifted from the Division's Parole Board to counties and local parole officers. Counties are now required to create LCRCs which determine which local inmates, if any, are to be released to supervision by the county probation departments. Members of LCRCs may be paid or unpaid.See endnote 4 Pursuant to Correction Law §272, LCRCs:
(1) have the power and duty of determining which persons sentenced within the county and serving a definite sentence of imprisonment and eligible for conditional release pursuant to subdivision two of section 70.40 of the penal law may be released on conditional release and when and under what conditions in accordance with section two hundred seventy-three of this article;In sum, LCRCs consider the parole of prisoners serving short sentences (non-felony) in county jails. This is contrasted with the responsibilities of Division parole officers who are concerned with felons serving indeterminate sentences who have been released from State prisons.See endnote 5
(2) determine, as each inmate applies for conditional release, the need for supplemental investigation of the background of such inmate and cause such investigation as may be necessary to be made as soon as practicable. The commission may require that the probation department located in the jurisdiction of the commission conduct such supplemental investigation. The results of such investigation together with all other information compiled by the local correctional facility and the complete criminal record and family court record of such inmate shall be readily available when the conditional release of such inmate is being considered. . . .
. . . .
(4) have the power to revoke the conditional release of any person in the legal custody of the commission and to issue declarations of delinquency and authorize the issuance of a warrant for the retaking of such person, as provided for in section two hundred seventy-four of this article.
Some LCRCs have asked several of the Division's parole officers to serve as members of LCRCs, a service which the Division believes constitutes a conflict of interest. Guided by an opinion of the Division's acting counsel, the Division's executive director denied parole officers permission to serve on LCRCs.See endnote 6 PEF challenged that decision by filing an improper practice charge. The Division agreed to revisit the matter and both parties are now seeking Commission consideration of the conflict of interest question.
APPLICABLE STATUTESPublic Officers Law §74 addresses both actual conflicts of interest and their appearance. The code of ethics found in Public Officers Law §74 provides minimum standards against which State officers and employees are expected to gauge their behavior. The code addresses the conflict between the obligation of public service and private, and often personal, financial interest.
Public Officers Law §74(2) contains the rule with respect to conflicts of interest:
No officer or employee of a state agency . . . should have any interest . . . 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):
(a) No officer or employee of a state agency . . . should accept other employment which will impair his independence of judgment in the exercise of his official duties.
. . . .
(c) No officer or employee of a state agency . . . should disclose confidential information acquired by him in the course of his official duties nor use such information to further his personal interests.
. . . .
(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.
. . . .
DISCUSSIONIn a June 28, 1989, memorandum advising the director of human resource management, the Division's acting counsel described conflict of interest scenarios which could occur should parole officers serve as members of LCRCs:
An employee serving as a member of an LCRC and as an employee of the Division of Parole could be placed in the position of dealing with the same inmate/parolee both as a parole officer and as Local Conditional Release Commissioner. For example, the employee could have a parolee assigned to his or her caseload, the parolee could subsequently be incarcerated on a local sentence, and the inmate could then appear before the same employee (acting now in a quasi-judicial capacity, as a local public officer) for release consideration. Similarly the employee could have released an inmate in his or her capacity as a Local Conditional Release Commissioner, the inmate could subsequently be sentenced to a new indeterminate sentence, and the same employee, now acting as an employee of the Division of Parole, could be called on to prepare a pre-release summary prior to the inmate's appearance before the Board of Parole or to supervise the inmate following parole release. . . . Because the inmate/parolee could easily claim that this could result in a lack of impartiality, the employee would have to recuse him or herself from the second interaction. The practical effect would be to impact on work assignments that could properly be given to the employee. Moreover, even in the absence of specific case conflicts, there could easily be scheduling conflicts: the Local Conditional Release Commissioner will have to be available to conduct revocation hearings on a very tight time schedule (15 days as opposed to the 90 days available for parole revocation hearings), and a Division employee serving as a member of a Local CRC would therefore have to be excused from performing his or her official duties for the Division of Parole on relatively short notice.
The issue for the Commission to determine is whether a parole officer's service on an LCRC constitutes a violation of Public Officers Law §74. Can such service impair a parole officer's independence of judgment, or cause him to disclose confidential information or raise suspicion that he is engaged in acts in violation of his trust? The Division suggests that it could.
The pertinent part of the Division's opinion presents the concern that inmates/parolees could find themselves supervised by Division staff at the State level and then judged by the same individual at the local level. For the parole officer as an LCRC commissioner to act with respect to such a State parolee would raise questions as to whether he is utilizing confidential information obtained during the State period of oversight. The Division argues that an inmate/parolee could complain that a parole officer, due to his service as an LCRC commissioner, could be less than impartial and violate the inmate's constitutional right to due process and Public Officers Law §74. The U.S. Supreme Court addressed the application of due process standards in parole proceedings in Morrissey v. Brewer (408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484):
Though parole revocation does not call for the full panoply of rights due a defendant in a criminal proceeding, a parolee's liberty involves significant values within the protection of the Due Process Clause of the Fourteenth Amendment, and termination of that liberty requires an informal hearing to give assurance that the finding of a parole violation is based on verified facts to support the revocation.
The Morrissey standards of due process, including a concern for impartiality, are found in Executive Law §259-i(3)(c):
Within fifteen days after the warrant for retaking and temporary detention has been executed, the board of parole shall afford the alleged parole or conditional release violator a preliminary revocation hearing before a hearing officer designated by the board of parole. Such hearing officer shall not have had any supervisory involvement over the alleged violator. (Emphasis added.)
The Division has also taken steps to ensure the fairness of its parole officers by providing in its Employee Manual:
- Parole officers shall not associate or fraternize with inmates, parolees or releasees except for purposes of engaging in official business.
- Parole Officers shall not cohabit with inmates, parolees or releasees.
- Where circumstances are such that "a" or "b" above cannot be realistically adhered to, it is the responsibility of the employee to notify his supervisor in writing of all the facts and circumstances surrounding such association and shall obtain written approval for it.
The Morrissey decision, the Executive Law and the Division's own policies make clear that every effort should be made to ensure the impartiality of Division employees in the parole process at every level.
Because it is foreseeable that parole officers and LCRC members may deal with the same clientele, the Commission finds that whether the parole officer had oversight of an individual first as an LCRC commissioner or as a parole officer, a conflict of interest (or its appearance) is also foreseeable. A parole officer who has dealt with an individual at the LCRC level must recuse himself/herself from later involvement as a parole officer in such case. Similarly, a parole officer who first has dealt with an individual at the LCRC level must recuse himself/herself from later involvement as a parole officer.
The Division raises two further objections to its parole officers serving as LCRC commissioners: the impact of recusals on the parole officer's ability to perform his or her State job responsibilities and the need for parole officers to use leave time on short notice to attend LCRC meetings. The Commission will address each.
With respect to the former, the Commission concludes that if the required recusals would occur on such a frequent basis so as to interfere with the parole officer's ability to perform his or her Division duties, Public Officers Law §74 would bar the parole officer from serving as an LCRC commissioner. This determination of whether and when recusals reach an unacceptable level is for the Division to make.
The Division also objects that LCRC service could require the parole officers to use annual leave, often on short notice, when their services are required by the Division. The Commission often has made it clear that State officers and employees engaged in non-State activities may pursue those activities only when there is no conflict of commitment with the discharge of the employee's State responsibilities. The use of such annual or personnel leave may only be utilized with appropriate advance Division approval.
A conflict of commitment is found when the external or other activities and undertakings of a State officer or employee are so substantial or demanding of the State officer or employee's time and attention as to interfere, or appear to interfere, with State responsibilities to the agency with which the State officer or employee is affiliated or employed, or to the State as a whole. This decision is not for the Commission but the Division management to make with appropriate reference to internal personnel procedures and union contracts. If the Division determines that the LCRC activities in which a parole officer has become involved are interfering with his or her duties, the Division may require that the employee resign from the LCRC in question.
Finally, to assure compliance with Public Officers Law §74 parole officers must not use any State resources of any type in furtherance of their LCRC duties. This applies to telephones, office supplies, postage, photocopying machines or support staff assistance.
CONCLUSIONThe Commission finds that there is no violation of the provisions of Public Officers Law §74 for a parole officer to serve as an LCRC member provided the following conditions are met:
- the parole officer must recuse himself or herself from any matter concerning any inmate/parolee whose case he or she considered or was involved in when serving as a member of an LCRC, and the Division;
- the parole officer must otherwise be able to fulfill the responsibilities of his or her State position, given the time demands of serving on an LCRC; the Commission leaves the determination of that issue to the Division on a case-by-case basis; and
- those parole officers who currently serve on an LCRC and those who enter such service after this opinion is issued shall provide a copy of this opinion to the LCRC, so that the LCRC knows the possible restraints on the parole officers' service.
This opinion, until and unless amended or revoked, is binding on the Commission in subsequent proceedings 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 an opinion.
Joseph M. Bress, Chair
Barbara A. Black
Angelo A. Costanza
Donald A. Odell, Members
Dated: May 19, 1992
Endnote: 1 Division of Parole, Consolidated Job Description, "Parole Officer."
Endnote: 2 Id. at "Activity III."
Endnote: 3 L.1989, c. 79, §1.
Endnote: 4 Members of at least 24 out of 57 LCRCs are volunteers. (Seven LCRCs provided no information on pay.). When paid, LCRC members are compensated at rates ranging from $30 to $175 per meeting, or $5/hour to $1,000/year. LCRCs meet once or twice per month.
Endnote: 5 "Indeterminate sentences" require a minimum of one year and a maximum time to serve.
Endnote: 6 In its October 30, 1991, correspondence to the Commission, PEF indicated that approximately 10 active parole officers were serving in the capacity of LCRC members at the time that the prohibition to their service went into effect. Pursuant to the Division's directive, all resigned their LCRC service.
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