Advisory Opinion No. 07-03
Guidelines for the use of State aircraft by public officials for State and non-State travel.
The New York State Ethics Commission ("Commission") has been asked to provide guidelines on the proper use of State aircraft when a trip by a State official involves both State and non-State business ("mixed-purpose trip") (1) and the extent to which the official must reimburse the State for the portion of the trip not involving State business. (2) Executive Law §94(15) authorizes the Commission to render advisory opinions on the requirements of Public Officers Law §§73, 73-a, and 74. Having now reviewed this subject, the Commission issues this opinion to inform State officials of the Commission's interpretation of the provisions of the Public Officers Law applicable to the use of State aircraft for mixed-purpose trips. (3)
The Commission concludes that when a State official uses State aircraft for a mixed-purpose trip, the following requirements must be met to satisfy the provisions of the Public Officers Law: (i) there must be a bona fide State purpose for the trip; (ii) the State purpose must be the primary reason for the trip; (iii) the public official must make an accurate apportionment of the time spent between State and non-State business and promptly reimburse the State for that portion of the trip not related to State business; (iv) such reimbursement must be based on current airplane charter costs, not commercial flight rates; and, (v) the State official must report to the Executive Chamber on the details of the activities engaged in by the official while on a mixed-purpose trip using State aircraft. The Commission expects that this information will be available to the public through the Freedom of Information Law ("FOIL") request, except to the extent the public disclosure would jeopardize the security of the public official.
The New York State Police maintains the State's aircraft fleet, which includes both fixed wing aircraft and helicopters. According to the State Police Aviation Unit Manual, there are fourteen authorized uses for State aircraft, including law enforcement operations, disasters, searches for criminal or noncriminal suspects, aerial firefighting operations, and official transportation of personnel when approved.
Historically, the Executive Chamber of the Governor's Office approves the use of State aircraft for executive travel. Under the current administration, in order to request use of State aircraft, a public official must complete a "Flight Request Information" form, which requires the following information: the date, departure and arrival times, the passengers traveling, the purpose of the flight, including a reference to the official State business being conducted, and a certification by the State official to the truth and accuracy of the information provided, together with approval by the Governor's Chief of Staff.
The Commission, in applying Public Officers Law §74, sets forth the following guidelines on the use of State aircraft for mixed-purpose trips. These guidelines shall apply prospectively only.
The provision that provides the rule with respect to conflicts of interest for Executive Branch officials is found in Public Officers Law §74 subdivision (2), which reads as follows:
No officer or employee of a state agency, member of the legislature or legislative employee 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.
The Commission must examine the conduct of State officials and the use of State resources in light of Public Officers Law §74(3)(d) and (h), which state the relevant standards of behavior:
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.
Section §74, the State's code of ethics, addresses both actual and apparent conflicts of interest, and this code sets forth the standards against which State officers and employees in the Executive Branch must conduct their activities. The State's code addresses the conflict between an employee's official duties and obligations and his or her private interests. As the Attorney General stated in a 1979 opinion applying Public Officers Law §74:
A public official must not only be innocent of any wrongdoing, but he must be alert at all times so that his acts and conduct give the public no cause for suspicion. He must give no appearance of a potential conflict between his duties and personal activities even though an actual conflict is not present . . . (1979 Op. Atty. Gen 66).
State supplies, equipment, personnel and other resources must be used only for government purposes and not for private gain or partisan politics.
In other contexts, the Commission has addressed the conflict between a State employee's official duties and his or her partisan political activities. In Advisory Opinion No. 93-9, in which the Commission considered the application of §74 to a State employee seeking elective office, the Commission recognized that such a campaign might require the substantial expenditure of time and resources. The Commission held that "[n]o State resources of any type, including telephones, office supplies, postage, photocopying machines or support staff assistance," could be used in the furtherance of a State employee's campaign.(4) In Advisory Opinion No. 98-12, addressing whether State employees could work on political campaigns, including fund-raising, the Commission reaffirmed this basic principle and barred the use of State resources for political purposes, stressing that, "[a]t all times the State employee shall avoid conduct which promotes the perception that his actions as a State employee may be influenced by his political activities."
The Commission has taken action to enforce §74(3)[d] and [h] when State officials have misused State resources (see, In the Matter of Alan G. Hevesi, Comptroller of the State of New York, finding that Mr. Hevesi improperly used State resources, a State employee, to provide transportation to his wife; In the Matter of James Bailey, an employee of the New York State Housing Finance Agency, finding Mr. Bailey improperly used State resources in engaging in his outside law practice.)
The Commission recognizes that, on occasion, a State official will want to combine a State business trip on State aircraft with a trip involving activities not related to State business. When State officials use State aircraft for such mixed-purpose trips, the Commission recognizes that a question is raised as to whether the public official is using State property for non-State business, thereby obtaining a benefit from the air travel at the taxpayers' expense, securing unwarranted privileges or exemptions for the official or others, and otherwise pursuing a course of conduct that may raise suspicion among the public that he or she is acting in violation of his or her trust [See, Public Officers Law §74 (3)(d) and (h)].
Accordingly, when a State official uses State aircraft for a mixed-purpose trip the Commission concludes that Public Officers Law §74 requires that the official satisfy five conditions. First, in all instances, a mixed-purpose trip must satisfy a bona fide State purpose; that is, the trip must involve the discharge of the State officer's public responsibilities and directly relate to the conduct of State business. For example, §74 would be violated if the State business proffered as the reason for the trip is nothing more than a pretext to permit the State official's use of State aircraft for non-State activities, particularly partisan political activities.
Second, the bona fide State purpose must be the primary reason for the trip.
Third, the State official must make an accurate apportionment of the time spent on State and non-State business and be responsible for promptly reimbursing the State for the portion of the flight that is allocable to non-State business. This guideline is similar to the rule applied by the federal government in connection with the use of government aircraft. In the past, the Commission has looked to federal ethics laws for guidance (see, Advisory Opinion Nos. 94-16, 05-01 and 06-01). The federal regulations require federal officials to reimburse the federal government for the portion of the trip on government aircraft related to non-governmental business when the trip is mixed with official business (see, 11CFR §9034.7 (1998); 5 CFR §734.503 (1998); "Improving the Management and Use of Government Aircraft," Office of Management and Budget Circular No. A-126 (Revised) [May 22, 1992]).
Because the Commission considers the use of State aircraft to be the equivalent of traveling by private charter aircraft, State officials must reimburse the State for the non-governmental portion of flights by State aircraft at reimbursement rates based on current charter costs, not commercial flight rates.(5) In these cases, the allocation made between the State and non-State business and the basis for the allocation should be made available to the public, for example, on the "Flight Request Information" form provided to the Executive Chamber. (6) The Commission expects that the public will have access to this information through a FOIL request, except for those portions exempt from disclosure, i.e., when disclosure would jeopardize the security of a public official. In this regard, if an official cites security concerns as a basis for a mixed-use trip on State aircraft, the trip should be permitted only when the public official can support such a claim with sufficient specific facts to justify use of State aircraft and the matter has been reviewed beforehand by the appropriate law enforcement authority.
Public officials must follow the letter and spirit of these guidelines. The Commission concludes that these guidelines satisfy the standards expressed in Public Officers Law §74. Whether New York State should ban outright any use of State aircraft for any non-State business is a matter for the Legislature to decide.
The Commission concludes that when a public official uses State aircraft for State and non-State travel, the following requirements must be met: (i) there must be a bona fide State purpose for the trip; (ii) the State purpose must be the primary reason for the trip; (iii) the public official must make an accurate apportionment of the time spent between State and non-State business and promptly reimburse the State for that portion of a trip not related to State business; (iv) such reimbursement must be based on current airplane charter costs; and (v) the official must provide the Executive Chamber with the details of the activities upon which the allocation between State and non-State business is based, information that the Commission expects will be available to the public through a FOIL request, except to the extent public disclosure would jeopardize the security of the public official.
This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding.
John D. Feerick,
Robert J. Giuffra, Jr.
Carl H. Loewenson, Jr.
Susan E. Shepard,
Dated: August 16, 2007
2. In 1995, Governor Pataki's administration requested clarification from the Commission of the rules governing the use of State aircraft for mixed-purpose trips. The Commission's then- Executive Director responded informally to this request, stating that officials were not required to reimburse the State for the portion of a mixed-purpose trip that involved non-State business, as long as the government portion of the trip was for a bona fide State purpose. Commission staff reiterated this informal advice to Governor Pataki's administration in 2001. On July 5, 2007, the Commission received a request from four groups: Citizens Union of the City of New York, Common Cause, League of Women Voters and New York Public Interest Research Group, asking that the Commission set forth a clear policy on the use of State aircraft for travel in connection with political activities. More recently, on July 23, 2007, the Office of the Attorney General issued a report requesting guidelines on the use of State aircraft for mixed-purpose trips (see, Report of Investigation into the Alleged Misuse of New York State Aircraft and the Resources of the New York State Police, at pgs. 2 and 53).
3. This opinion is binding on the Governor, Lieutenant Governor, Comptroller, Attorney General and their respective staffs [see, Public Officers Law §73(1 )(h)]. The Ethics Commission does not have jurisdiction over members of the State Legislature, although the Governor's Office should apply these guidelines in approving the use of State aircraft by others, including the members of the Legislature.
4. The Commission routinely reminds State officers and employees of this prohibition when approving outside activity requests, such as running for elected office and engaging in outside employment. Governor Spitzer's Executive Order No. 1, dated January 1, 2007, also prohibits the use of State resources for non-governmental matters.
5. By way of example, the Commission surveyed the costs of a private charter flight from Albany to New York City. A private charter company estimates the cost of a one-way trip presently to be $2,172.
6. To illustrate, if a public official travels to attend a two-hour meeting with a mayor for a bona fide State purpose and then spends fours hours participating in a partisan political event, the calculation for reimbursement to the State should be based on the following: the total activity time is 6 hours; 67% of the public official's time is spent conducting non-State business. If the private charter cost of the trip is $10,000, the public official must reimburse the State $6,700 for the non-State portion of the trip. Any question that might arise as to the fair allocation between State and non-State business should be resolved in favor of the State.