|Advisory Opinion No. 97-19:||Application of Public Officers Law §74 to a State employee whose spouse is president of an organization composed of members licensed by the unit directed by the employee.|
The following advisory opinion is issued in response to a request from [the requesting individual], an employee of the Department of Environmental Conservation ("DEC"), who seeks guidance from the Commission because his wife is president of an organization which regularly deals with the DEC unit that he heads and which has as individual members licensees of that unit.
Pursuant to the authority vested in the New York State Ethics Commission ("Commission") under Executive Law §94(15), the Commission hereby renders its opinion that [the requesting individual's] continuing to carry out his functions would not constitute a violation of Public Officers Law §74; provided that he must recuse himself when a direct conflict would result, as when his wife personally appears before his unit or personally advocates with respect to a controverted matter, and that he and his agency take the other steps required by this opinion.
[The requesting individual] is the unit leader of a DEC licensing unit. He was recently married to [spouse's name], who is president of the [an organization]. Since [the requesting individual] and his unit deal regularly with [his wife's organization, he] is concerned with the ethical issues that will arise because of his marriage. He has asked the Commission to provide him with guidance so that he can avoid any conflict of interest or appearance of a conflict in violation of Public Officers Law §74.
[The requesting individual], in his public position, heads a unit in which he supervises eight staff members. He reports to [a Division] Director [ ]. His unit is responsible for the issuance [of many] licenses. [The requesting individual] himself, does not issue any of these licenses, nor does he personally review their issuance. In his request for an opinion, [the requesting individual] indicated that his unit issues more than 16,000 [ ] licenses annually.
[The requesting individual] is responsible for maintaining a working knowledge of laws, regulations and ecological issues that relate to the various licenses issued by his unit. He is also responsible for acting as a liaison with the many special interest groups that are authorized, under [ ] license, to take certain actions related to [a program area]. He drafts regulations, initiates actions to be taken by the Division of Law Enforcement, amends license conditions, and integrates the issues and concerns of his Division's technical staff with those of the regulated communities. Critically, for purposes of this opinion, [the requesting individual] is directly responsible for statewide initiatives concerning DEC's [ ] program, although day to day responsibilities for the administration of that program are handled by an employee in his unit.
There are approximately 750 holders of [a type of license] statewide.(1) [This] number [ ] has generally remained stable during the past few years, as each year about 100 new [individuals] are certified, a number nearly equal to those who do not seek renewal. Many individual [licensees] have formed small local [ ] organizations for the purpose of promoting their work and advocating for their objectives. These organizations commonly enjoy non-profit status under the tax laws. The [organization], of which [the requesting individual's] wife is president, is the State's largest [such] organization [ ]. It has approximately 200 licensees as members. Like the others, [it] is a not-for-profit organization dedicated to the advancement of [its program] by promoting professionalism. It provides educational seminars and technical information through a newsletter, and it works closely with federal and State agencies, including DEC, to secure better regulations [in its area of concern] and to promote [its objectives]. When it has matters with DEC, [it] invariably deals with [the requesting individual] and his unit.
DEC officials, who are aware of [the requesting individual's] recent marriage and his request for this opinion, have advised the Commission that [he] has been particularly effective in administering the State's [ ] program. He is often asked to speak at conferences and seminars concerning the State's activities, and he often arranges and conducts Statewide programs concerning [his specialty]. For example, he recently arranged for a statewide video teleconference [on new State requirements]. He has also recently developed a State information guide on the subject of [ ]. DEC officials note that [the requesting individual's] efforts in this area have been recognized nationally, and they are hopeful that he can continue as the administrator of the program.
Public 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.
Of particular relevance to this inquiry are the following provisions of Public Officers Law §74(3):
. . . .
(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.
(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.
. . . .
Among the most difficult ethical issues of our time are those that arise when each spouse to a marriage pursues a professional career in the same field, and their individual careers require them to deal with each other. An opinion of the American Bar Association, which considered spouses who are attorneys, noted that
The problem undoubtedly will arise with increasing frequency and in different settings, for it is a fact of modern society that women are entering the profession in increasing numbers and that increasing numbers of these women are married to lawyers. (ABA Formal Opinion 340, 1975)
The Federal Reserve was recently forced to confront these issues when the President of the Federal Reserve Bank of Boston was married to a member of a large investment banking firm (N.Y. Times, April 9, 1997).
As those who have considered these issues have repeatedly noted, there are no easy answers. Certainly, to hold that either spouse may not pursue the career of his or her choice is unacceptable. It is therefore necessary to adopt guidelines in any particular situation that gives reasonable assurance that a conflict will not develop, although it is impossible to completely isolate from each other two individuals who share a marital relationship. Understanding these difficulties, the Commission now proceeds to consider the situation presented here.
As noted above, Public Officers Law §74 governs the conduct of State officers and employees, not that of private citizens. Therefore, the Commission must address itself to [the requesting individual]. It does not have jurisdiction over his spouse, and, therefore, cannot place limitations or restrictions on her activities.
In Advisory Opinion No. 91-21, the Commission considered the provisions of Public Officers Law §74 as applied to a sibling relationship. There, the brother of a senior State manager sought a no-bid consulting contract with the manager's State agency. The Commission concluded that there was no conflict of interest per se by the brother's firm contracting with and performing services for the agency. It reasoned that:
. . . a conflict of interest does not exist simply because a senior manager's sibling's firm is conducting business with a State agency . . . (and) absent circumstances beyond that of a sibling relationship, the fact that the [employee] has no interest in and receives no compensation from the firm, she plays no role in the selection process where this firm is a contender, and in light of the [agency's] contracting guidelines in place, no reasonable basis can be found for the impression that the [employee] would use her official position to obtain a contract for her brother or that she conducted herself in violation of her trust.
The Commission concluded that the senior State manager did not violate Public Officers Law §74 provided that:
(1) the manager has no interest, financial or otherwise, in the sibling's firm; (2) the manager's regular job duties do not encompass the selection of the consultant or the review or oversight of the consultant contract, or, if the job duties involved encompass such involvement, the manager is completely screened out from the consideration and appointment of such a firm or contract; (3) the manager makes full disclosure to [agency] staff of her relationship to the firm's principals and recuses herself from any role in consideration or approval of a contract to the firm; and (4) should the firm be selected for a contract, the manager's supervisor approves the selection of the contract on its merits.
The Commission's most significant opinion to date concerning a spousal relationship is Advisory Opinion No. 95-35. There, the wife, a State employee, was the director of a unit that was authorized to make decisions regarding the funding of certain projects and was responsible for overseeing certain funded projects. Her husband was an architect, and he was retained by clients which sought funding from the unit or which had funded projects overseen by the unit. The architect did not personally deal with the unit.
While acknowledging that this lack of a direct relationship lessened the possibility that a conflict of interest would occur, the Commission noted that the potential for conflict in circumstances involving spouses is greater than when siblings are involved. "It cannot be said," the Commission reasoned, "that the State employee has no interest in, or would not, to some degree, personally benefit from, the work of her husband." The Commission required her recusal on any project on which her husband was to perform services.(2) It further required that the State employee refrain from revealing confidential information to her husband or from having a financial interest in his practice beyond that created by the spousal relationship. The employee also agreed not be to signatory to any form documents sent by her unit to clients of her husband. The Commission went on to require when a matter involved her husband, it should be reviewed by her supervisor, a Deputy Commissioner. Finally, the agency agreed to issue a memorandum to staff reminding them to avoid discussing with the employee any matter from which she was recused, and to treat any application with which her husband was involved as they would any other application.
The situation presented by [the requesting individual] is somewhat different from those that gave rise to the previous Commission opinions, as the [organization] headed by [his] wife is not licensed or regulated by [his] unit, nor does it have a direct financial relationship with the unit. [His wife's organization] does not have and does not anticipate seeking a contract from [his] agency, as was the case in Advisory Opinion No. 91-21, or submitting a funding application, as was the case in Advisory Opinion No. 95-35. Its relationship with the unit is less clearly defined than it was in the other situations which were presented to the Commission. It will primarily advocate in support of positions it has adopted with regard to policies, rules and regulations to be promulgated by [the requesting individual's] unit, and work with the unit in implementing informational and promotional programs through conferences, newsletters, etc.
While the [organization headed by the wife of the requesting individual], itself, is not licensed, each of its members [ ] has received a license from [his] unit. While these licensed [individuals] cannot charge for [engaging in their licensed activity], some earn their living working for not-for-profit organizations dedicated to [their work]. These individuals could not engage in such work without a license. Consequently, their livelihood rests with the licensing decisions of [the requesting individual's] unit.(3)
Many [individuals in the field] have chosen to join organizations other than the [the organization headed by the requesting individual's wife], while still others have chosen not become involved in any organization. From time to time, issues arise which are of concern to all [licensees] in the State. Illustrative is the State's policy with respect to [ ]. In such circumstances, all licensees rely on the fair and unbiased development and application by [the requesting individual] and his staff of the State's policies and regulations. Like the other [similar] organizations, the [organization headed by the requesting individual's wife] takes positions which reflect the views of its membership on issues such as these. Given the nature of such organizations, their interests are not necessarily those of the entire community, or even those of all their individual members.
As a State employee, [the requesting individual] is charged with the responsibility of directing the State's [ ] program in an objective manner. DEC has indicated that his performance in his position has been exemplary, and that he has done everything in his power to ensure that the actions of the unit have been objective. DEC is not aware of any instance where [the requesting individual's] spouse or the [organization] she heads has received special treatment by virtue of their relationship.
Given all of the above -- and noting, especially, that [the requesting individual] does not participate in the licensing of individuals [ ], and that his unit does not contract with [ ] organizations or distribute funds to them or their members -- the Commission concludes that there is not a per se conflict of interest in [the requesting individual's] holding the position of Unit Leader of the DEC [ ] Unit at the same time that his wife is president of the [organization]. Thus, the Public Officers Law does not prevent [the requesting individual] from continuing to function in his present position. However, he must take steps to minimize any appearance that he is less than objective in the administration of his duties.
In certain situations, recusal is required on his part. While it is impossible to detail every situation in which recusal is necessary, [the requesting individual] should recuse himself when a direct conflict will result. For example, [the requesting individual] should recuse himself whenever his wife personally appears at his unit or advocates on behalf of [her organization] with respect to a controverted matter. Were he to deal directly with his wife in such situations, [the requesting individual] could not help but give the appearance of a lack of objectivity. Therefore, others in his unit must handle these matters without his participation.(4)
This does not mean that [the requesting individual] can never deal with his wife. In educational and promotional work, the Commission does not believe that Public Officers Law §74 would be violated if, for instance, [the requesting individual] and his wife worked together on a conference in which [her organization] and DEC both participated, or if [the requesting individual] wrote an article to be published in the [organization's] newsletter. Assuming he engaged in similar activities with any organization other than [that headed by his wife] that was interested in such educational and promotional work, there is no conflict or appearance of a conflict in his working with [her organization].
Decision making by [the requesting individual's] unit also presents some problems. As noted in Advisory Opinion No. 95-35, when a unit head recuses himself or herself because of a spousal relationship, a decision made by an employee within the unit is still tainted because the employee knows of the relationship and may be fearful of deciding against the supervisor's spouse. The only means of removing the taint is to have an official above the unit head make, or, at least, review important decisions where the unit head's spouse is involved. Therefore, when agency policy is to be decided, or a rule or regulation is to be issued, and [the requesting individual] is required by this opinion to recuse himself, his superior, [the Division Director], must make the final decision. [The requesting individual] will be free to implement the decision after it is made.
Finally, [the requesting individual's] supervisor, the [Division Director], should issue a memorandum to staff advising them of the recusals required by this opinion, informing them not to discuss with [the requesting individual] any matter in which he has recused himself and directing them to treat any matter involving [his wife's organization] or any of its members as they would any other matter before them. This is consistent with the memorandum proposed in Advisory Opinion No. 95-35.
The Commission recognizes that implementing the guidelines set forth in this opinion will not be without difficulty, and it stands ready to assist if further advice is needed. By permitting [the requesting individual] to continue to function in his position and to deal with his wife and the organization she heads in some, but not all, circumstances, the Commission has attempted to be fair to [the requesting individual] and his wife and, at the same time, uphold the ethical standards to which State employees must adhere.
The Commission concludes that [the requesting individual] would not violate Public Officers Law §74 by continuing to carry out his functions. However, he must recuse himself when his wife's position results in a direct conflict, as when she personally appears before the unit he heads or personally advocates on behalf of the [organization she heads] with respect to controverted matters. In addition, he and his agency should take the other steps required by this opinion.
This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding concerning the person who is the subject of the opinion and who acted in good faith, unless material facts were omitted or misstated in the request for an opinion or related supporting documentation.
Evans V. Brewster
Donald A. Odell
Paul L. Shechtman, Members
Dated: July 28, 1997
1. [Footnote deleted]
2. The New York State Attorney General also required recusal when he addressed the question of whether a county legislator should take part in executive sessions to negotiate a contract with the bargaining unit that included his wife's position (see Op. Atty. Gen. No. 86-101; Op. Atty. Gen. No. 88-34). The Attorney General found that the county legislator "should recuse himself from taking any actions with respect to the salary and terms and conditions of employment of his spouse with county government."
3. [The requesting individual's] wife is, of course, a licensee. It is clear that [the requesting individual] must recuse himself from the processing or issuance of her license or any matter relating to her license.
4. In order not to give his wife or her organization undue advantage, [the requesting individual] should not reveal confidential information to her in either his professional or personal relationship.