INTRODUCTION
.The following advisory opinion is issued in response to a request
from Joan A. Kehoe (“Kehoe”), Counsel to the Department of Agriculture
and Markets (“DAM”), concerning the ethical obligations of members
of the New York State Soil and Water Committee (“State Committee”),
as they administer grants to County Soil and Water Conservation
Districts (“SWCDs”).
Pursuant to the authority vested in the New York State Ethics
Commission (“Commission”) by §94(15) of the Executive Law, the
Commission concludes that members of the State Committee must
disclose their affiliations, if any, with potential grant recipients
and recuse themselves from certain aspects of the grant process
under the guidelines set forth below.
BACKGROUND
Soil and Water Conservation Districts Law (“SWCD Law”) §11-b
establishes the Agricultural Nonpoint Source Abatement and Control
Program (“NPS”), which is a competitive matching grant program.
Under NPS, County SWCDs apply to a State Committee for grants
to correct and prevent water pollution from farms and farming
activities.1 SWCDs, of which
there are 58 in New York, are special purpose districts created
to develop and implement programs of soil, water and related natural
resource conservation; each SWCD has a five member Board of Directors
appointed by the County (see, SWCD Law §6).
The State Committee
As described in SWCD Law §4(1), the mission of the State Committee
is to develop a responsible Soil and Water Conservation Program
to be implemented through County SWCDs. The State Committee consists
of fourteen members: five voting members and nine advisory members.
Three voting members are appointed by the Governor from
lists of nominees submitted by the State Grange, the State Farm
Bureau Federation and the New York Soil Conservation Districts
Association, Inc. The two other voting members are appointed
as at-large members, one a representative of farm interests and
the other a representative of non-farm landowner interests.
Voting members receive no compensation for their services, but
are reimbursed for their expenses. Notably, nothing in the
statute precludes a voting member from being associated with a
County SWCD, and historically many members have had such associations.
The nine non-voting members serve in an advisory capacity and
consist of individuals, many of whom represent State agencies,
who bring varied expertise and knowledge to the State Committee.2
The Grant Process
Each year, the advisory members of the State Committee, with
the assistance of State Committee staff, develop a Request For
Proposal (“RFP”) to be sent to the County SWCDs, as well as criteria
to be used in the grant selection process. The RFP and the
selection criteria are then reviewed and approved by the voting
members of the State Committee. When proposals are received
from the County SWCDs in response to the RFP, the advisory members
have the responsibility to rank the proposals in accordance with
the selection criteria. Those rankings are then forwarded
to the voting members, who have the final authority to award grants
until available funds are exhausted.3
After the grants are awarded, the State Committee has oversight
functions, which include the authority to approve work plans and
grant modifications.
Potential Conflict of Interest
The potential for a conflict of interest arises because, at present,
three of the voting members on the State Committee also serve
on the Board of Directors of their local County SWCDs: one is
Chair of Delaware County; one is Chair of Suffolk County; and
a third is Vice Chair of Tioga County. In addition, some
of the non-voting members of the State Committee are associated
with County SWCDs. CALS, CCE and ESF/SUNY, or their
employees, for example, often assist County SWCDs to draft
grant proposals or subcontract with County SWCD grant recipients
to provide services under the grants.4
In short, both voting and non-voting members may be in a
position to review and pass judgment on proposals in which they
or the organization they represent have some interest.5
APPLICABLE STATUTES
The members of the State Committee are State officers covered
by Public Officers Law §74, the code of ethics. The rule
with respect to conflicts of interest, contained in Public Officers
Law §74(2), states:
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.
Public Officers Law §74(3) provides standards of conduct:
. . . .
(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.
. . . .
(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.
DISCUSSION
Kehoe poses two questions which the Commission will address in
turn.
1. May a voting member of the State Committee, who
concurrently serves on the board of a County SWCD which has applied
for funding, or is involved in an organization that subcontracts
with SWCD to provide services under the NPS grant program (a)
set policies related to RFPs for the NPS grant program; (b) approve
the RFP; (c) approve the ranked list of applicants; or (d) approve
amendments to the contract?
Closely on point is Advisory Opinion No. 95-13,
in which the Commission considered the ethical obligations of
members of the New York State Thoroughbred Breeding and Development
Fund Corporation, who were responsible for allocating Fund resources
and some of whom were eligible to receive awards from the Fund.
The Commission reviewed the statutory framework and concluded
that the Legislature clearly intended to repose decision-making
authority over Fund resources in the hands of qualified individuals
connected to the breeding industry. The Commission recognized
that in such circumstances, a broad prophylactic rule that would
disqualify a director from participating in any aspect of the
funding process if he or she were eligible to receive an award
would “clearly frustrate th[at] legislative intent.” It would
impose a limitation on membership that would be at odds with the
Legislature's purpose in enacting the law. Nonetheless,
the Commission recognized that there would be a substantial conflict
of interest, and clear appearance of impropriety, if a member
deliberated and voted on a matter from which he or she might personally
benefit. The Commission therefore held that, under Public
Officers Law §74, a member was required to recuse himself in any
such instance.
More recently, in Advisory Opinion No. 01-02,
the Commission employed a similar analysis to determine whether
members of the Advisory Committee to the New York Office of Science
and Technology and Academic Research (“NYSTAR”) could deliberate
and vote on applications when an entity in which the member had
an interest was applying for a grant. The Commission again
adopted a targeted recusal rule instead of a broad ban on any
participation in the grant process. The Commission looked
separately at the relationship between the various members of
the Advisory Council and potential grant applicants and required
recusal only where a “member would have an interest in a transaction
in substantial conflict with the proper discharge of his duties
in the public interest . . . and would be engaged in a course
of conduct which would raise suspicion that he [was] engaged in
acts that are in violation of his trust.”
That same analysis should be applied in determining the ethical
responsibilities of State Committee voting members in the NSP
grant process. The Legislature clearly contemplated that
voting members would be individuals with expertise and interest
in County conservation issues. The Commission is therefore
loathe to apply a broad rule that would bar participation in the
grant process if a voting member has any connection with a potential
grant applicant. Such a rule would frustrate the Legislature's
purpose in putting decision-making authority in the hands of those
who understand the issues the best.
At the same time it would blink reality not to recognize that
a member's judgment could be affected if he were called on to
vote on a grant application in which he has a direct interest.
Moreover, the public might well perceive favoritism in such
circumstances even if none actually existed. For these reasons,
the Commission concludes that although a voting member may approve
the RFP and the grant selection criteria, he or she must disclose
any business relationship he or she has with a County SWCD and
recuse himself from any vote involving a grant application in
which he or she has a direct interest. That means, for example,
that a voting member may not consider or vote on an application
from a County SWCD on whose Board he or she serves or for whom
he or she provides any services.6
Likewise, it means that a voting member may not exercise any oversight
responsibilities in connection with a grant awarded to a County
SWCD with which he or she has such a relationship.
The Commission recognizes that a voting member could still seek
to skew the selection process toward his County SWCD even if he
or she is prohibited from voting on its application. In
theory, one could vote to disfavor a rival applicant in order
to favor one's own County's application. The sole remedy
for such potential mischief, however, is a broad disqualification
rule that the Commission has rejected for the reasons set forth
above. Voting members are charged with responsibility to
award grants in the public interest, and there is every reason
to believe that they appreciate the seriousness of their assignment.
Under these circumstances, the recusal rule adopted herein
seems sufficient to ensure that voting members will not act in
a manner that could be perceived as improperly favoring one County
organization over another. If there is any indication that
we are wrong in that assessment, the Commission is prepared to
revisit the issue in the future.
2. If an advisory member or any of its employees
assists a County SWCD to draft a grant application or subcontracts
with a County SWCD that has received a grant, may the member have
any role in the grant process?
The principle enunciated above makes the answer to this question
straightforward. Where an advisory member has some involvement
with a County SWCD, either in preparing a grant or performing
services under it, the public might well suspect that the advisory
member is predisposed to that applicant. It is the very
potential for such favoritism that the Ethics Laws are designed
to guard against. Advisory members have an important role
in the grant process. Not only do they help formulate the
RFP and selection criteria, but their rankings are given substantial
weight by the voting members in reaching final determinations.
It is therefore important that ethical restraints apply
to them as well as to voting members.
Accordingly, the Commission believes that a similar recusal rule
is required for non-voting members of the State Committee. Non-voting
members may assist in drafting the RFP and in ranking grant applicants,
but they must disclose any business relationship with a County
SWCD or other affiliation they may have in an organization performing
services under the grant and not participate in ranking that County
proposal or overseeing any grant awarded to that County SWCD.
For the Dean of CALS, for example, the recusal rule means
that she should not rank any County SWCD application in which
CALS or any of its employees has had, or will have, involvement.
Nor should she exercise oversight over any grant that has been
awarded to such an applicant. Moreover, given the close
relationship between CALS, CCE, and the local CCEs, the Dean
of CALS should recuse herself from ranking a grant application
in which CCE or a local CCE is or may be involved and from administering
any such grant that is awarded. Similarly, the Director
of CCE should recuse herself from considering grant applications
and administering grants involving CCE, a local CCE, or CALS.
The Commission recognizes that the Dean of CALS and the Director
of CCE bring especially valuable technical and practical knowledge
to the State Committee and that the recusal rule enunciated herein
will limit their participation more than that of other advisory
members. It believes, however, that public confidence in
the fairness of the grant process requires that limitation.
Finally, it is important to reiterate the same admonition to
non-voting members that was directed to voting members. The
ability to help develop the RFP, to formulate the selection criteria,
and to vote on grant applications and administer grants subject
to the recusal rule set forth herein (all of which are permitted
under this opinion) can be abused to favor a grant application
in which a non-voting member has an interest. Given the
high quality of the non-voting members and their commitment to
the public interest, the Commission has no reason to expect that
will occur.
CONCLUSION
The Commission concludes that the provisions of Public Officers
Law §74 require the members of the State Committee to disclose
their affiliations and recuse themselves from certain matters
consistent with this opinion.
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.
All Concur:
Paul Shechtman, Chair
Robert J. Giuffra, Jr.
Carl H. Loewenson, Jr.
Lynn Millane
Susan E. Shepard, Members
Dated: December 4, 2003
End notes
1. SWCD Law §11-b sets forth detailed criteria for
project eligibility and provides for preferences to projects located
in priority water bodies identified pursuant to Environmental Conservation
Law §17-1407.
2. The non-voting members include: the Director
of the Cornell Cooperative Extension (“CCE”), the Dean of the
State College of Agriculture and Life Sciences (“CALS”) at Cornell
University (“Cornell”), the President of the College of Environmental
Science and Forestry of the State University of New York (“ESF/SUNY”),
the Commissioner of the Department of Environmental Conservation
(“DEC”), the Commissioner of DAM, the Commissioner of the Department
of Health (“DOH”), the Secretary of the Department of State (“DOS”),
the President of the New York State Conservation District Employees’
Association (“CDEA”); and the United States Department of Agriculture,
Natural Resources Conservation Service (“USDA/NRCS”).
3. State funding comes from the New York State
Environmental Protection Fund and the Clean Water/Clean Air Bond
Act.
4. CCE, CALS and Cornell are closely associated
with each other. County Law §224 provides for the formation
of local CCE organizations. Where the local CCEs have been
organized, a county may pay for their maintenance. The money
is expended under an agreement with CCE and Cornell for the management
of such work and the supervision of the professional staff. Moreover,
the current Director of CCE reports to the Dean of CALS, and her
representative on the State Committee is employed at CALS and
is also a Cornell employee.
5. For example, one of the voting members of
the State Committee is a Chair of his County SWCD and a Director
of his local CCE.
6. Recognizing the need for a quorum, the voting
member may, however, approve the rank list in total, but may not
challenge the standing of his or her County SWCD on the list,
or take a position that will directly affect his or her particular
County.