|Advisory Opinion No. 97-28:||Application of Public Officers Law §§73(5) and 74 to an employee of the Department of Environmental Conservation who wishes to engage in personal charitable fundraising activities.|
The following advisory opinion is issued in response to a request from [ ], an employee of the [ ] Unit in the Department of Environmental Conservation ("DEC"), who wishes to engage in charitable fundraising in his personal capacity.
Pursuant to the authority vested in the State Ethics Commission ("Commission") by Executive Law §94(15), the Commission hereby renders its opinion that [the requesting individual] may solicit funds in his personal capacity for a charitable purpose, but he should not solicit from those business entities or individuals where there are open pending cases in which he is involved or where there were cases within the last twelve months in which he was involved. If an entity from which he has accepted a contribution has a matter afterward that comes before him, he should recuse himself if the matter arises within one year of his acceptance of the contribution, although the one year period may vary depending upon the circumstances. Finally, [the requesting individual] may not use his official title, position or authority in his fundraising efforts or solicit from subordinates in his unit.
[The requesting individual] is employed by DEC as an [ ] Technician [ ] in the agency's [ ] Unit in [a Region]. This unit has ten employees and responds to calls in six counties. [The requesting individual] has worked in the unit for nine years, and he handles approximately 300 [matters] each year. He is currently assigned to [three] counties. In the past, he has been assigned to [three other] counties, and it is possible that he could again be assigned to those counties.
[The requesting individual] is currently exploring the possibility of biking across the country for the Lung Association. In order to do so, he needs to raise $6,000, which would require him to solicit contributions from corporations.
[The requesting individual] has stated that his fundraising activities would be conducted on his own time. He has also stated that he would not solicit monies from any company with which he has an open case. However, he recognizes that, given the nature of DEC's responsibilities and the duties he performs, almost any entity doing business within the region he covers could become subject to his Unit's authority. For example, a bagel company has offered him $1,000. This company currently has no matter before DEC. However, if it had a [particular accident], it is possible that the [employee's] Unit would investigate the matter.
[The requesting individual's] request concerns the ethical issues that would arise from his proposed fundraising efforts.
The provision of law most directly applicable to gifts to State officers and employees is Public Officers Law §73(5). It reads as follows:
No . . . state officer or employee . . . shall, directly or indirectly, solicit, accept or receive any gift having a value of seventy-five dollars or more whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or in any other form, under circumstances in which it could reasonably be inferred that the gift was intended to influence him, or could reasonably be expected to influence him, in the performance of his official duties or was intended as a reward for any official action on his part.
Portions of the State's Code of Ethics, contained in Public Officers Law §74, are also applicable to these gifts. The rule with respect to conflicts of interest is set forth in subdivision 2:
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 subdivision 3 include the following:
. . .
. . .
The cited provisions of §74 prohibit a State officer or employee from soliciting, accepting or receiving a gift of any value if to do so would constitute a substantial conflict with the proper discharge of his or her duties in the public interest (subdivision 2) or if it would cause the State officer or employee to violate any of the standards of §74(3). In contrast with §73(5), which sets $75 as the threshold value of a gift falling within its purview, the §74 proscriptions apply to all gifts, including those valued at less than $75.
In Advisory Opinion No. 94-16, the Commission undertook a detailed analysis of gifts to State employees. That opinion did not, however, analyze the situation presented here -- charitable fundraising by a State employee in his personal capacity.
Advisory Opinion No. 94-16 states that "[t]he Commission conceives of few, if any, circumstances in which the solicitation by a State officer or employee in his or her official capacity of a personal gift of any value would be appropriate behavior or be authorized by the provisions of Public Officers Law §74". (emphasis added). In this case, [the requesting individual] intends to solicit in his personal capacity. In addition, the gifts to be received are for charity rather than for his personal benefit.
Although Advisory Opinion No. 94-16 is not directly applicable, the Commission looks to the principles set forth therein for guidance in this situation. In that Opinion, the Commission stated that, in general, it considers on a case-by-case basis the circumstances surrounding the offering, solicitation and receipt of a gift, as well as its value, to determine whether it is permissible under the Public Officers Law. In applying this case-by-case analysis, the Commission has developed and adopted certain guidelines. Two of the most important factors are the identity of the donor and the relationship of the donor to the State officer or employee and his or her State agency. The Commission has defined certain sources from which, in general, it is not acceptable to receive gifts. These "disqualified sources" include persons or entities which are regulated by the State employee's agency. With limited exceptions, gifts of more than $75 from disqualified sources can per se be inferred to be intended to influence the recipient, and a State officer or employee should not, directly or indirectly, solicit or accept such a gift from a disqualified source.(1)
The federal government has promulgated regulations that deal with fundraising activities by government employees carried out in their personal capacities. Federal employees may engage in such fundraising activities if they do not use their official title, position or authority to further that effort, or personally solicit funds or other support from subordinates or from anyone known to them to be a disqualified source (called a "prohibited source" in the federal regulations). (5 CFR §2635.808; See Office of Government Ethics Advisory Opinion No. 93-19).
The question for the Commission is how to apply these rules in the context of the authority exercised by [the requesting individual's] unit at DEC. Since he would be soliciting contributions in his personal capacity and receiving no benefit from the contributions he solicits, all of the restrictions that are imposed upon him as a State employee are not necessarily applicable; yet, there are certain restrictions that are required to avoid a conflict of interest or the appearance of a conflict. [The requesting individual's] request asks the Commission to define these restrictions.
First, as [the requesting individual] has noted, he should not solicit from those business entities or individuals where there are open pending cases in which he is involved. Such solicitation would clearly be in violation of §74. In addition, he should refrain from soliciting from those with whom he has had dealings in the recent past, as it could appear that he was using a relationship developed in his public position to seek a contribution, or that a contribution in such circumstances was a reward for his public activities. By the recent past, the Commission means a period of twelve months, which is the period set forth in Advisory Opinion No. 94-16 in which the value of gifts received by a single individual from a single source is aggregated for determining their value. This means that [the requesting individual] should not solicit a contribution from any individual or entity with which he has had a matter within the last twelve months.
Another issue is what [the requesting individual] is to do if an entity from which he has accepted a contribution has a matter afterward that comes before him. This is the hypothetical mentioned in the background section of this opinion concerning the bagel company. In such an event, he should recuse himself from the matter and ask that it be handled by someone else in his unit. After such recusal, he should play no role, nor should he discuss the matter with the individual assigned. This recusal requirement, which is intended to avoid the perception that [the requesting individual's] public actions are related to his receipt of a contribution, is imposed for a reasonable period of time, based upon the circumstances. In this case, a one year period appears to be reasonable; that is, the recusal requirement continues for a period of one year after his acceptance of the contribution. However, this may vary, as the potential for conflict increases as the amount of the contribution increases. The Commission cannot anticipate every situation. It, therefore, urges [the requesting individual] to request further advice should an especially large contribution be received.
Finally, the Commission adopts those portions of the federal restrictions which prohibit [the requesting individual] from using his official title, position or authority in his fundraising efforts and prohibit him from soliciting from subordinates in his unit. These restrictions prevent him from his abusing his public position.
The Commission concludes that [the requesting individual] may solicit funds in his personal capacity, but he may not solicit from those business entities or individuals where there are open pending cases in which he is involved or where there were cases within the last twelve months in which he was involved. If an entity from which he has accepted a contribution has a matter afterward that comes before him, he should recuse himself if the matter arises within one year of his acceptance of the contribution, although this one year period may vary according to the circumstances. Finally, [the requesting individual] may not use his official title, position or authority in his fundraising efforts or solicit from subordinates in his unit.
This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding 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 opinion or related supporting documentation.
Evans V. Brewster
Henry G. Gossel
O. Peter Sherwood, Members
Dated: December 17, 1997
1. Gifts of less than $75 from a disqualified source are not per se impermissible, but are subject to analysis under §74 to determine whether or not they may be accepted.