Ethical Responsibilities of Unpaid or Per Diem State Officers
The State Ethics Commission receives many inquiries from unpaid or per diem members of multi-member bodies - boards, commissions, authorities, public benefit corporations, etc. - concerning their obligations under the State ethics laws.
The Commission's jurisdiction extends to Public Officers Law §§73, 73-a and 74, Section 73 restricts certain outside activities of State officers and employees, regulates their acceptance of gifts and contains the revolving door restrictions. However, with one exception, this section does not apply to uncompensated or per diem members (see subparagraphs [iii] and [iv] of §73[1][I]. The one exception is §73(3)(b), which bars those members who are required to file an annual financial disclosure statement from receiving compensation for appearing or rendering services against the interests of the entity on which they sit in relation to any matter in the Court of Claims.
By regulation, the Commission has required that boards, councils and other bodies adopt a code of ethics for their unpaid or per diem members covering conflicts of interest, business and professional activities and other outside activities. The code must be filed with the Commission (19 NYCRR §932.5)
Section 73-a requires that every unpaid or per diem member who serves on a policymaking body file an annual statement of financial disclosure with the State Ethics Commission. If there is any question as to whether the members of any public body are considered policymakers, information can be obtained from the Commission. Disclosure statements are due 30 days after an individual's initial appointment and on or before May 15 of each succeeding year.
Finally, Public Officers Law §74, the State Code of Ethics, is applicable to all unpaid and per diem members. A copy of this section is attached. An ethics reference guide for unpaid and per diem State officers is also attached for your information.
It is important that all individuals serving as members of public entities be familiar with their ethical responsibilities. They should, therefore, review these materials with care, especially the opinions that interpret the applicable statutory provisions. Should a question ever arise, the Commission is available to informally discuss the matter in confidence. We may be reached at (518) 408-3976. The Commission also issues confidential informal and formal advisory opinions upon request.
SUMMARY OF STATE ETHICS COMMISSION ADVISORY OPINIONS PERTAINING TO UNPAID AND PER DIEM STATE OFFICERS OF BOARDS, COMMISSIONS AND COUNCILS
May an unpaid or per diem officer vote on applications from entities with which he or she has a relationship?
Advisory Opinion No. 93-16 - There would be a conflict of interest posed where a board member votes on applications from members of two organizations of which he is employed. The board member should recuse himself from voting as a member of the board upon applications of members of these organizations.
Advisory Opinion No. 94-11 - A board member's past employment and business relationships are relevant in determining whether such member should recuse from acting on applications from these sources. The Commission adopts a presumption that action by a member of a board concerning a former employer or business that he or she left within the last two years is a violation of Public Officers Law §74.
Advisory Opinion No. 95-13 - Due to its unusual statutory scheme, board members of the New York State Thoroughbred Breeding and Development Fund Corporation ("Fund") who are eligible to receive awards from the Fund may participate in matters involving allocation of the Fund's resources and in matters concerning the requirements for qualification of thoroughbreds as New York-bred without violating Public Officers Law §74.
Advisory Opinion No. 95-18 - Public Officers Law §74 does not prohibit a member of the Board of Regents from serving as a compensated trustee of a foundation which is chartered by the Regents and provides grants to institutions of higher learning in New York State, subject to certain conditions.
Advisory Opinion No. 96-26 - The President of the Rent Stabilization Board may accept the prospective appointment to the State of News York Mortgage Agency ("SONYMA") and satisfy Public Officers Law §74 by recusing himself from the deliberations and voting whenever a member of RSA has a matter before SONYMA.
Advisory Opinion No. 98-10 - A member of the board of trustees of a public university may continue her twenty years of service as an adjunct instructor at one of the colleges within the university system as long as she, when acting as a trustee, recuses herself from certain specified matters and does not use her position as a trustee to gain undue advantage in her relationship with the college.
Advisory Opinion No. 01-2 - Members of the New York State Office of Science, Technology and Academic Research ("NYSTAR") Advisory Board may discuss and vote on all applications except those from entities where the member is employed or where the member has a direct relationship with an applicant. All members may discuss applications with applicants prior to their submission to the Advisory Council.
Advisory Opinion No. 03-9 - Members of the New York State Soil and Water Committee, an entity within the Department of Agriculture and Markets, must disclose their affiliations with potential grant recipients and recuse themselves from certain aspects of the grant process under guidelines set forth.
May an unpaid or per diem officer (or his or her employer) appear before or do business with the State agency with which the board is affiliated?
Advisory Opinion No. 92-11 - It is not a violation of Public Officers Law §74 if a public benefit corporation enters into a retainer agreement with the member's law firm provided that the safeguards set forth in the opinion are met, such as full disclosure, recusal and insulation from net revenues generated by the agreement.
Advisory Opinion No. 93-17 - The board member's law firm may appear before the board and the State agency of which his board is a part as long as the board member recuses himself from any involvement in any board proceeding in which the law firm has an interest.
Advisory Opinion No. 95-27 - To avoid the appearance of a conflict of interest, a member of the Public Health Council who is an attorney may not appear before any unit of the Department of Health on behalf of clients.
Advisory Opinion No. 06-4 - A Public Health Council member who is also an owner, officer or employee of an entity regulated by the Department of Heath ("DOH") may not communicate with DOH on any issue.
Advisory Opinion No. 97-27 - Given the nature of the relationship between the board and the Statet agency, Public Officers Law §74 does not preclude a member of the board from practicing as an attorney before the State agency while serving as a board member.
Advisory Opinion No. 98-8 - Given the nature of the relationship between the board and the State agency of which it is a part, Public Officers Law §74 does not preclude a board member from practicing as an attorney before the State agency. He may not represent clients before the Board.
Advisory Opinion No. 99-5 - An attorney who serves as a board member may submit a Freedom of Information request to the State agency of which the board is a part, but may not appear on the appeal of the denial of any such request.
When does Public Officers Law §74 apply to advisory boards?
Advisory Opinion No. 98-7 - Public Officers Law §74 applies to members of advisory boards (1) when they are designated as policymakers, or (2) where at least one member of the board on which they serve is appointed by the Governor. The statute will be applied in a manner that recognizes the special nature of such boards and the responsibilities of their members.
Are there any limits on private sector activities by unpaid or per diem officers?
Advisory Opinion No. 93-17 - A board member who has been named as a policy maker may not represent clients in litigation before the Court of Claims when the interests of the client are opposed to those of the State agency of which his board is a part.
Advisory Opinion No. 96-13 - A State Education Department policy prohibiting board members from concurrently serving in leadership and advocacy positions with professional associations is consistent with the Code of Ethics of Public Officers Law §74
Advisory Opinion No. 97-8 - A member of the board of trustees of a public university may not participate in matters pertaining to legal actions brought against the university where he was previously associated with the plaintiffs and shared confidences with their attorneys.
An Ethics Guide for Unpaid or Per Diem New York State Officers
Introduction
As an unpaid or per diem member of a policymaking body or other entity on which at least one member is appointed by the Governor, your public service to the State of New York requires you to abide by certain provisions of the State ethics laws. This general guide will familiarize you with these ethical provisions. If you have questions regarding the information contained in this guide or if you have specific ethical concerns, please contact the Commission.
History
In 1987, New York State adopted the Ethics in Government Act, a sweeping reform of the States laws intended to maintain the integrity of State government.
The Act created the New York State Ethics Commission and gave it jurisdiction over officers and employees of the executive branch and entities with at least one member appointed by the Governor. Its five members are appointed by the Governor; one of the members is nominated by the State Attorney General and another by the State Comptroller.
Duties
The Commission's duties include:
- rendering advisory opinions which interpret and apply the laws as they pertain to present and former State officers and employees;
- collecting, auditing and making financial disclosure statements available for public inspection;
- receiving complaints alleging violations of Public Officers Law §§73, 73-a and 74;
- investigating complaints on its own initiative;
- issuing rules and regulations to implement and enforce the Ethics in Government Act; and
- preparing legislation to reform and improve the requirements of the ethics law.
Financial Disclosure
Annual statements of financial disclosure are required of all policymakers and of those who - unless exempted by the Commission - earn compensation in excess of the job rate of Salary Grade 24, which is $77,661 at the time of this printing.
The statement requires filers to list major assets, sources of income, liabilities, names of spouses and unemancipated children, whether they are licensed by or do business with a State agency, sources of gifts, reimbursements, trusts, deferred income, real property, and other information. [Public Officers Law §73-a]
Prohibited Activity
State officers who are required to file annual statements of financial disclosure are prohibited from receiving compensation for appearing or rendering services against the interests of the entity on which they sit in relation to any matter in the Court of Claims. [Public Officers Law §73(3)(b)]
In addition, individuals who serve in policy-making positions are prohibited from serving as an officer of any political party or political organization or as a member of any political party committee including political party district leader or as a member of a national committee of a political party. [19 NYCRR Part 932.2]
Conflicts of Interest
Public Officers Law §74, the code of ethics, applies to all unpaid and per diem members. Such State officers should not have any interest in or engage in any business or activity "in substantial conflict" with the discharge of their public duties. This restriction prohibits you from:
- disclosing confidential information acquired in the course of your official duties or using such information to further your personal interests;
- using or attempting to use your official positions to secure unwarranted privileges or exemptions for yourselves or others;
- giving reasonable basis for the impression that any person can improperly influence you or unduly enjoy your favor in the performance of your official duties, or that you are affected by the kinship, rank, position or influence of any party or person.
State officers should endeavor to pursue a course of conduct which will not raise suspicion among the public that you are likely to be engaged in acts that are in violation of your public trust.
Finally, by regulation, the Commission requires that boards, councils and other bodies adopt a code of ethics for their unpaid or per diem members covering conflicts of interest, business and professional activities and other outside activities. The code must be filed with the Commission. [19 NYCRR Part 932.5] For a copy of the code which pertains to the public body on which you serve, contact your public body or the Commission.
Investigations
The Commission undertakes investigations of alleged violations of the law within its jurisdiction upon complaint or upon its own initiative. Complaints may be made anonymously.
The Commission has the power to subpoena witnesses and require the production of any relevant books or records
Penalties
Individuals who knowingly and intentionally violate Public Officers Law §73(3 )(b) will be subject to a civil penalty not to exceed $10,000. In lieu of a civil penalty, the Commission may refer violations to an appropriate prosecutor for prosecution as a Class A misdemeanor.
Individuals who violate Public Officers Law §74 may also be subject to disciplinary action, including a fine, suspension or dismissal by their appointing authority.
Getting Advice
The New York State Commission on Public Integrity offers advice on applications of the law in individual circumstances. Individuals with questions may contact the Commission by letter or telephone. The phone number is 518-408-3976. The address is 540 Broadway, Albany, NY 12207. The Commission's assistance is confidential. You also can obtain information by visiting the Commission's website at www.nyintegrity.org.
New York State Commission on Public Integrity
540 Broadway
Albany, New York 12207
518-408-3976
E-mail: cpi@nyintegrity.org
Public Officers Law