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Advisory Opinions

Individuals subject to the Commission's jurisdiction may request an advisory opinion interpreting the application of the Public Officers Law to State officers and employees. Advisory opinions are issued after approval by a majority of the Commission members. They are binding on both the Commission and the requesting individual in any subsequent proceeding, provided the requesting individual acted in good faith and neither omitted nor misstated any material facts. Although limited to the particular facts presented in each matter, advisory opinions serve as precedent for the determination of other cases.

Summaries of the Commission's most recent advisory opinions follow. Identifying information such as the name of the requestor and, in certain instances, the name of the agency involved, by law, must be removed to protect the privacy of the person requesting the opinion. Copies of the advisory opinions are available on the Commission's website at www.nyintegrity.org.

Readers should refer to the full opinions for a thorough understanding of the facts and reasoning by the Commission.

[NOTE: Unless otherwise stated, all sections of the law referred to in the following opinions are contained in the Public Officers Law. The opinions are numbered based on the year they were issued and the order in which they were approved. For example, Advisory Opinion No. 09-01 is the first opinion issued in 2009.]

The Commission also issues informal advisory opinions approved by the Executive Director. These address issues that have been previously addressed by the Commission and therefore do not require another review. Informal advisory opinions are not public and are not binding on the Commission.

Advisory Opinion 09-01: In response to requests for a Commission interpretation of 19 NYCRR Part 930.6(a)(7), the Commission's regulation identifying individuals or entities from whom a State officer or employee may permissibly accept reimbursement for travel expenses that are related to his or her official duties, the Commission determined that a State officer or employee may permissibly accept travel expense reimbursement from a non-governmental organization that has members who may be engaged in activities listed in 19 NYCRR Part 930.6(a)(7)(i-iv), provided the non-governmental organization's officers or members of its board of directors are not engaged in the listed activities.

In keeping with the letter and the spirit of the regulations, State officers and employees should only accept travel reimbursement when it is clear that the non-governmental organization is not being used as a subterfuge to offer reimbursement from an entity or individual who would otherwise be disqualified from providing travel reimbursement in accord with the Commission's regulation or Public Officers Law 74. Accepting travel reimbursement from a non-governmental organization that is merely passing through funds from individuals or entities who would otherwise be barred, pursuant to a Commission regulation or statute, from providing such reimbursement may be a violation of one of more of the prohibitions contained in Public Officers Law 74(3). Therefore, State officers and employees should inquire into the source of the travel reimbursement from a non-governmental organization.

Advisory Opinion 09-02: The New York State Department of Transportation asked whether its Student Assistants, Engineering Interns and Transportation Construction Inspectors (referred to collectively as "Interns"), who either pay a fee to the Public Employee Federation ("PEF") but are not members or become PEF members by virtue of their employment and, as a result, receive union benefits, qualify as "students" under Advisory Opinion No. 91-01 who are exempt from the post-employment restrictions of Public Officers Law 73(8)(a).

The Commission concluded that Interns who pay a fee to PEF but are not members as well as those who are PEF members, and who otherwise meet the criteria of "student" set forth in Advisory Opinion No. 91-01, are not subject to the revolving door provisions of Public Officers Law 73(8)(a), because they receive PEF benefits, not State employee benefits.

Advisory Opinion No. 09-03: The State Insurance Department asked whether either the two-year bar or the lifetime bar, set forth in Public Officers Law 73(8)(a) prohibits a former Department employee, who left the Department less than two years ago, from accepting an appointment by the Superintendent of Insurance as an uncompensated member of the Board of Governors of the New York Compensation Insurance Rating Board ("NYCIRB").

The Commission determined that the former Department employee, who terminated employment within the previous two years and who is subject to the two-year and the lifetime bars, may serve as the Superintendent's appointee to an uncompensated position on the NYCIRB Board. Moreover, in the course of performing her duties and responsibilities as a Board member, the former employee may appear before the Department, since any such appearance would be made at the request of and for the benefit of the State and, under the circumstances described hereafter, would not involve a transaction in which she was directly involved as a Department employee.

Advisory Opinion No. 09-04: The Commission re-visited the issue raised in Advisory Opinion No. 05-02 of the New York State Ethics Commission, a predecessor of this Commission, which determined that a full-time City College of New York professor whose annual salary exceeded the statutory filing rate was required to file an Annual Statement of Financial Disclosure for a year in which he received about $1,800 less in compensation than the filing rate as a result of taking a voluntary half-pay sabbatical for one semester.

The Commission concluded that a State officer or employee who is not a policymaker and serves in a position with a full-time salary in excess of the filing rate, but who is hired on a permanent part-time basis and, thus, receives annual compensation that is intended to be less than the filing rate, and cannot exceed the filing rate, is not required to file an Annual Statement of Financial Disclosure with the Commission.

Advisory Opinion No. 09-05: In response to a written request from a lobbyist retained by a church to engage in local lobbying the Commission determined that Legislative Law 1-c(c)(F) exempts only a church, its integrated auxiliary, or a convention or association of churches from the Lobbying Act's registration and reporting requirements with respect to local lobbying activities. This statutory exemption does not extend to a lobbyist retained by a church, its integrated auxiliary, or a convention or association of churches to engage in local lobbying activities on the entity's behalf. Thus, such a lobbyist is required to register with the Commission and file required annual and bi-monthly reports with the Commission to the extent such registration and reporting is otherwise required by the Lobbying Act (e.g., the anticipated lobbying fees and costs exceed $5,000). Similarly, and to the same extent, a church, its integrated auxiliary, or a convention or association of churches that retains a lobbyist for such a purpose is required to file client semi-annual reports with the Commission.

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