|Advisory Opinion No. 95-43:||Application of Public Officers Law §§73(7) and 74 to non-policymaking employees of the Department of Environmental Conservation who wish to appear before their employing agency.|
The following advisory opinion is issued in response to an inquiry from [ ], [an employee] employed by the Department of Environmental Conservation ("DEC") in the Bureau of Flood Protection, who is concerned about communicating with other DEC engineers bringing matters before the agency. He asks whether a DEC engineer may assist his family in obtaining a permit to build a dam, and whether a second DEC engineer may assist an organization of which he is a member in applying for a permit to repair a dam. In both instances, the engineers, neither of whom has been designated as a policymaker, would, in the regular course of business, discuss the applications with [the requesting individual] in his official position.
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 (1) both the engineer who wishes to assist his family to apply for a permit and the engineer who represents the association may provide such assistance without violation of Public Officers Law §74; (2) the engineer representing the association is prohibited by §73(12) from communicating with DEC employees regarding its application; and (3) the engineer assisting his family may submit an application in his own name, but must recuse himself from any consideration of the application.
[The requesting individual], [an employee] in the Bureau of Flood Protection, performs technical review of the safety aspects of proposed dam work. He is concerned about two different situations.
The first concerns a DEC engineer who is member of a lakefront property owner's association ("association"). [The requesting individual] asks whether the engineer may prepare and sign, on behalf of the association, documents which are to be submitted to DEC as part of a dam repair permit application. In the ordinary course of DEC's handling of such an application, [the requesting individual] and the engineer would communicate with each other. The engineer, who would not be compensated for his work, is employed in the Bureau of Wastewater Facilities Design, one of the eight bureaus located in the Division of Water. That Bureau reviews and approves permits for wastewater treatment facilities submitted by municipalities and private industry. The Bureau of Flood Protection, where [the requesting individual] works, is also located in the Division of Water and is charged with responsibility for dam safety, flood control projects (levees, pump stations, etc.), flood plain management, and coastal erosion. In the ordinary course of their work, [the requesting individual] and the engineer do not have reason to communicate with each other.
The second set of circumstances involves a DEC engineer who has responsibility for dam safety in the agency's regional office in [ ]. He is responsible for identifying and analyzing issues of regional concern related to a project in his area. The question presented is whether, where the engineer's family wishes to apply to DEC for a permit to build a dam within that region, the engineer may collaborate with the designer of the dam. The permit application is submitted to DEC's central office for technical review, and part of [the requesting individual]'s duties in such a situation is to communicate with the designer on technical issues. The engineer may or may not be named "applicant" when the application is submitted. As in the first situation, the engineer will not be compensated, nor will he be involved in any aspect of the project as a DEC employee.
Public Officers Law §73(7)(a) states:
No . . . state officer or employee, other than in the proper discharge of official 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: . . . . (v) licensing . . . .
The term "licensing" is defined by §73(1)(b) of the Public Officers Law, which states:
the term "licensing" shall mean any state agency activity . . . respecting the grant, denial, renewal, revocation, enforcement, suspension, annulment, withdrawal, recall, cancellation or amendment of a license, permit or other form of permission conferring the right or privilege to engage in a (i) a profession, trade, or occupation or (ii) any business or activity regulated by a regulatory agency as defined herein, which, in the absence of such license, permit or other form of permission would be prohibited.(1)
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 an employee of the agency concerned with the matter.
Section 74 contains the Code of Ethics. It is concerned with both actual conflicts of interest and the appearance of conflicts. The rule with respect to conflicts of interest, contained in §74(2), provides the following:
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.
Standards set forth in §74(3) which further explain and define the above-mentioned rule and which pertain to the present circumstances, include the following:
. . . .
. . . .
. . . .
. . . .
The Commission must determine whether the DEC engineers may, in view of Public Officers Law §§73(7), 73(12) and 74, render the services described above with respect to the matters before DEC and communicate regarding those matters with [the requesting individual].
The §73(7) question can be quickly resolved. The activities proscribed by this subdivision are barred only when a State employee is to receive compensation. Since neither engineer would receive any compensation for his services, those services are not prohibited by §73(7).
The other provisions cited above apply differently to each of the engineers. Thus, the Commission will review each situation separately.
The Engineer Representing the Lakefront Association.
Although the DEC engineer who is a member of the association and is assisting it in applying for a dam repair permit is not precluded by §73(7)(a) from appearing before DEC, he is prohibited from orally communicating with [the requesting individual] or any other DEC officer or employee with regard to the application. Unlike §73(7)(a), §73(12) does not require compensation for its restrictions to be applicable. This section prohibits State officers or employees who are members of firms or associations or shareholders of corporations from orally communicating with officers or employees of any State agency as to the merits of any matter covered by §73(7)(a), whether or not compensation is received. Since a permit application is covered by §73(7)(a), subdivision 12 acts to bar the engineer from communicating with DEC officials even though it does not otherwise bar his activities.
The Commission must next consider whether the conflict of interest provisions of §74 would bar the engineer from appearing before DEC. This section addresses not only actual conflicts of interests but also conduct that gives rise to the appearance of a conflict.
In determining whether the engineer may obtain the permit, the Commission views him as a State employee engaging in an activity outside of his State employment. In assessing whether a State employee may engage in an outside activity, the Commission, in general, 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 [see Public Officers Law §74(3)(a), (b), (c) and (d)].
The Commission has permitted a non-policymaking employee to have an outside employment relationship with a provider licensed by the employing agency when the job responsibilities are removed from the agency's licensing and rate setting functions (See Advisory Opinion No. 91-3), and it has permitted employees who are not policymakers to be licensed family care providers if they do not work in the unit that certifies or administers the family care programs (See Advisory Opinion Nos. 91-11, 94-17). In permitting these activities, the Commission considered whether the public might perceive that the employees in their outside capacity would receive preferential treatment from agency employees or be privy to confidential agency information not available to others engaging in similar activities, and it concluded that those concerns were not present.(2)
In this case, the engineer's wastewater treatment responsibilities are sufficiently removed from the dam approval process so as to render the possibility of a conflict of interest minimal. While the Bureaus of Wastewater Facilities Design and Flood Protection are both within the Division of Water, they function independently of each other and operate as separate units. Thus, there is little risk that the public would perceive that the engineer would receive preferential treatment or be privy to confidential information. The Commission finds that there would be no §74 bar to the DEC engineer, who is not a policymaker, engaging in the outside activity of assisting the association in its application for a permit issued by his employing agency.(3)
The Engineer Assisting His Family.
The Commission next examines the same statutory scheme with regard to this engineer. First, considering §73(12), the Commission concludes that this section does not bar him from communicating with DEC officials. The exception bars communication only when engaged in by a State employee as a member of a firm or association or a stockholder in a corporation. Here, the engineer would be communicating on his own behalf or on behalf of his family.
Turning to §74, the outcome is somewhat different from that reached with respect to the engineer assisting the association. The Commission concludes that an individual who is a State employee is not precluded by §74 from submitting an application on his or her own behalf as long as the application is not submitted to the particular unit in which the employee works. Such an application is permissible even if it could not be submitted on behalf of an organization or a paying client. As in this case, a State employee should be permitted to build a structure on his or her own property where a permit is needed. Section 74 should not be read to prevent State employees from seeking to use their own property in a manner in which they see fit if State law is followed.
This exception to the usual prohibitions of §74 is narrow. It applies to a landowner who makes application on his or her behalf. The Commission need not decide at this time whether the exception would extend to applications submitted by members of an employee's family, as the engineer has stated that he may or may not be the applicant. If he is, the exception applies and he may file the application. The Commission leaves open the question of whether he may file the application if it is submitted in the name of a member of his family.
In creating this exception and permitting the engineer to work on and submit his application, the Commission acknowledges that the engineer's outside activity will be directly related to the work he performs in his official duties. As part of the permit process for dam construction, the safety of the proposed dam must be considered by DEC. As a regional engineer, the employee is directly concerned with the safety of dams in the area covered by the regional office in which he works. Under these circumstances, the engineer must disclose to his supervisor his relationship with respect to the application and recuse himself from any official responsibility in the matter.
The Commission concludes that (1) both the engineer who wishes to assist his family to apply for a permit and the engineer who represents the association may provide such assistance without violation of Public Officers Law §74; (2) the engineer representing the association is prohibited by §73(12) from communicating with DEC employees regarding its application; and (3) the engineer assisting his family may submit an application in his own name, but must recuse himself from any consideration of the application.
This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding concerning the requesting individual who acted in good faith, unless material facts were omitted or misstated by the person in the request for opinion.
Joseph M. Bress, Chair
Angelo A. Costanza,
Robert E. Eggenschiller, Members
Dated: December 19, 1995
1. The definition of "regulatory agency" found at §73(1)(c) includes the Department of Environmental Conservation.
2. In contrast, the Commission found in Advisory Opinion No. 89-6 that a high-level State employee was prohibited from appearing and representing himself in his personal capacity and in his capacity as the unpaid president of a not-for-profit homeowners' organization before a State agency or agencies over which he had substantial influence in his State position because such actions created a potential appearance of a conflict of interest in violation of §74 of the Public Officers Law. The engineers in question here do not hold positions at DEC of similar responsibility and authority, and the appearance of a conflict is not inevitable.
3. As discussed above, pursuant to §73(12), the engineer should not communicate with any DEC employees regarding the application.