Advisory Opinion No. 07-05

Extension of Advisory Opinion No. 07-03: standards for the use of State aircraft by public officials for State and non-State travel.

Introduction

The Governor's Office ("Office"), in a letter dated September 19, 2007, has requested clarification of Advisory Opinion No. 07-03 (cited as "Opinion"), which pertains to the use of the State aircraft by public officials when a trip by the State official involves both State and non-State business.

Pursuant to the authority vested in it by Executive Law §94(15), the New York State Commission on Public Integrity ("Commission") renders its opinion that State officials and employees may use State aircraft provided they abide by the standards set forth in this opinion.1

Background

In Advisory Opinion No. 07-03, the Commission established standards for use of the State aircraft by public officials for State and non-State travel. The Commission concluded 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 details of the activities engaged in by the official while on a mixed-purpose trip using State aircraft, and the information should be made 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 Commission also stated that Public Officers Law §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." The Commission concluded that these standards satisfied Public Officers Law §74 and further indicated that "[p]ublic officials must follow the letter and the spirit of these guidelines."

The Office seeks clarification as to the application of these standards in six areas. First, the Office asks whether reimbursement is necessary only when the non-governmental business is attendance at a political event, or whether reimbursement is required for time spent on any non-governmental business, political or otherwise. For example, the Office asks if an official who uses State aircraft to travel from Albany to Rochester for six hours of governmental meetings must reimburse for time spent having lunch or for "down time" between scheduled official meetings. The Office notes that the federal government does not require reimbursement for personal activities engaged in during such official trips nor, in its opinion, should a public official incur personal, financial costs for these activities.

Second, the Office states that a public official, such as the Governor, may travel to different locations over several days, and asks how to allocate the time the Governor would spend on non-governmental, non-political matters such as eating, sleeping or being with his family. Further, when there is multi-day travel, the Office asks how to calculate the time spent on political activities if a political event occurs on one-day of a multi-day trip.

Third, in its letter, the Office states that the standards in Advisory Opinion No. 07-03 do not address whether other passengers accompanying the official on a mixed-use trip, such as staff members, are also required to reimburse the State. The Office observes that once an official has reimbursed the State for the political portion of a mixed-use trip, there is no need for additional reimbursement because the State has been made whole. The Office asks whether this is correct.

Fourth, the Office asks whether the source of the reimbursement for non-State business may be from personal or campaign funds.

Fifth, the Office seeks clarification on calculating reimbursement for non-State business when a public official uses the State aircraft to travel one-way without use of the aircraft for the return trip. In its letter, the Office states that it is not possible to "make an accurate apportionment of the time spent on State and non-State business" as there is no "end-point" for the trip.

Finally, the Office observes that there may be situations when use of the State aircraft is the only means of transportation available to permit a public official to attend a State meeting or event. The Office posits that if there are political events later in the day after the governmental business, it would appear that no reimbursement to the State is necessary if the sole basis for using the aircraft is to attend to State business, since the official would not have otherwise used the aircraft.

Similarly, the Office seeks clarification for a situation in which a public official, such as the Governor, uses the State aircraft to fly home following meetings or events that were official State business, and thereafter attends a political event in the evening on the day of the flight, but after the trip has concluded. The Office asks whether attendance at the political event requires reimbursement since, the Office observes, the Governor would have used the State aircraft to return home even if there were no political event.

Discussion

The Commission will address each of the questions in order.

1. Incidental Personal Time Spent During Government Trips

Assuming the standards enunciated in Advisory Opinion No. 07-03 are met, a State official will not have to reimburse the State for incidental personal time or "down time" between government meetings. This is consistent with federal regulations.2

Thus, in the example described in the Office's letter, if an official uses the State aircraft to travel from Albany to Rochester for six hours of official meetings in the morning and afternoon, reimbursement is not required for the two hours between the meetings when no State work is undertaken, because the two hour block was necessitated by the scheduling of the official State business events.

2. Multi-Day Travel

The Office asks how to allocate non-governmental, non-political time, such as eating, sleeping, or being with family, when a public official, such as the Governor, is traveling for more than one day.

The same standards discussed in Section One above apply to this situation as well. If the Governor's travel plans are for a bona fide State purpose, the State purpose is the primary reason for the trip, and the reason for the trip is not a pretext to permit engaging in non-State activities, then reimbursement is not required for time spent on non-State business such as eating, sleeping or being with family. The trip is considered official State business.

The Commission held in Advisory Opinion No. 07-03 that public officials must comply with the letter and the spirit of its standards for the use of State aircraft. Accordingly, if the trip, in fact, is arranged to facilitate personal activities, a reasonable perception is created that the public official is using State resources for personal gain.

With respect to the methodology for calculating the time spent on political activities if a political event occurs on one-day of multi-day travel, the Commission considers each day of a multi-day trip independently. For example, if a public official spends seven hours on official government business on Monday in Syracuse, six hours on official business and two hours on political activity on Tuesday in Buffalo, and then seven hours on official business in Rochester on Wednesday before returning to Albany, the official must apportion the costs of the use of the State aircraft from Syracuse to Buffalo and Buffalo to Rochester. Since one-fourth of the total activity time in Buffalo, or two hours of the eight hours, was spent on political activity, the public official must reimburse the State one-fourth of the costs for that portion of the trip to Buffalo. The public official need not reimburse the State for the trip from Rochester, where only State business was conducted, to Albany.

3. Multiple Passenger Travel

The Office requests clarification concerning the allocation of costs in those instances when staff of an official accompanies the official on the aircraft. Reimbursement is not required when staff travels with the official to provide assistance during the State business portion of the trip. Consistent with the federal regulations, reimbursement also would not be required for those staff who attend a political event because they are required, in the course of their duties, to accompany the public official, such as security personnel.3

The Commission noted that the standards set forth in Advisory Opinion No. 07-03 are binding on the respective staffs of the four elected officials. See, endnote 3. Therefore, to the extent that a staff member is engaged in the political portion of a trip, reimbursement to the State is required. Such activities also must not be in violation of Public Officers Law §74, the Code of Ethics. See, e.g., Advisory Opinion Nos. 92-16, 97-4, 98-12.

When there are staff members who travel with a State official to engage in political activity not in the course of their State duties, the amount to be reimbursed to the State for the use of the State aircraft must be divided by the number of these individuals who are on the flight. For example, if the Governor and three staff members engage in political activity for two hours of a trip, the cost allocated for the political portion of the trip should be divided by four. However, the total amount to be reimbursed is not to exceed the total cost for the non-State business portion of the flight. It is not the purpose of Advisory Opinion No. 07-03 to generate profit for the State. Rather, the purpose of the Advisory Opinion's standards is to require those who incur the costs for using State property for non-State purposes to reimburse the State for those non-State costs.

4. Sources of Reimbursement

With regard to sources of reimbursement, the State official must take steps to ensure that the State is correctly reimbursed for the use of State resources for non-State purposes. With regard to seeking reimbursement from campaign committees, the State official must seek guidance from those authorities that regulate the use of campaign funds.4

5. One-Way Travel

The Office asks how to calculate costs between State business and non-State business in those instances when an official uses the State aircraft to fly only one-way of the trip.

As stated in Advisory Opinion No. 07-03, the Commission considers the use of the State aircraft to be akin to traveling by private charter aircraft. Therefore, if the aircraft is used for one-way of a trip, the official must reimburse the cost that would be charged by a private charter company for a one-way trip comparable to the State official's trip.5

6. "Sole Purpose" Aircraft Usage

The Office further asks whether there is to be reimbursement if the aircraft is the sole available means to attend the State related meeting, and there are political events attended by the State official later in the day after the conclusion of the governmental business. Whether the mode of transportation is the only available mode is not relevant to the determination of whether reimbursement is necessary.

No reimbursement is required if State aircraft is used solely to conduct State business. However, if the official spent a portion of the time on political activity in connection with the use of State aircraft, then reimbursement is required and apportionment of time must be undertaken under Advisory Opinion No. 07-03 in order properly to determine the reimbursement amount.6 Otherwise, the official will have used a State resource for a non-State purpose. Finally, if a public official engages in political activity after he or she has returned on the State aircraft to the point of departure for the trip, the trip has concluded and there is no need to reimburse the State.

Conclusion

The Commission concludes that: (1) a State official will not be required to reimburse the State for incidental personal time or the time between government meetings; (2) reimbursement is not required for time spent on non-State business, such as eating, sleeping or being with family, during multi-day trips provided that the standards in Advisory Opinion No. 07-03 are otherwise met; (3) reimbursement is required for the staff of public officials who attend political events, unless they are required as part of their official duties to accompany the public official, such as security personnel; (4) the State official must take steps to ensure that the State is correctly reimbursed for the use of State resources for non-State purposes, and must seek guidance from those authorities that regulate the use of campaign funds if seeking to reimburse from campaign funds; (5) if the aircraft is used for one-way of a trip, the official is to look to the cost that would be charged by a private charter company for a one-way trip comparable to the State official's trip; and (6) the unavailability of other modes of transportation is not relevant to the determination of whether reimbursement to the State is necessary when the State official, who is using State aircraft, attends political events during the trip. This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding.

All concur:

John D. Feerick,
Chair

Daniel R. Alonso

Virginia Apuzzo

John M. Brickman

Andrew G. Celli, Jr.

Richard D. Emery

Daniel J. French

Robert J. Giuffra, Jr.

David L. Gruenberg

Hon. James P. King

Hon. Howard A. Levine

Loretta E. Lynch

John T. Mitchell

Date: December 11, 2007


footnotes:

1. The Public Employee Ethics Reform Act of 2007 created the New York State Commission on Public Integrity. The new thirteen-member Commission assumed the powers and duties of the New York State Ethics Commission and the New York Temporary State Commission on Lobbying. See, Chapter 14 of the Laws of 2007. Executive Law §94(1) states that "[t]his section shall not revoke or rescind any regulations or advisory opinions issued by the state ethics commission and the temporary lobbying commission in effect upon the effective date," i.e., September 22, 2007.

2. 5 C.F.R. '734.503(c)(1) states, in part: "An employee covered under this subpart must apportion the costs of mixed travel based on the time spent on political activities and the time spent performing official duties. Prorating the cost of travel involves determining the "total activity time"which is the amount of time actually spent by the employee in meetings, receptions, rallies, and similar activities. Time spent in actual travel, private study, or rest and recreation is not included in the computation of total activity time. (Emphasis added).

3. 5 C.F.R. '734.503(b)[3] and [4], state, in part: "(b) For the purposes of this section, costs associated with a political activity do not include any costs that the Government would have or have incurred regardless of whether the activity was political. Examples of such costs are: [3] The compensation and expenses of any Government employee that is required in the performance of his or her duties to accompany or assist the person engaging in the political activity; and [4] The cost of special security arrangements for the person engaging in the political activity, including special transportation vehicles or methods."

4. It should be noted that a State official may not obtain reimbursement if the payment to the State is from a disqualified source, as defined in Advisory Opinion No. 94-16, or if reimbursement constitutes an unlawful gift pursuant to Legislative Law §1-c(j).

5. For example, a private charter company's cost may be different depending on whether the aircraft returned empty or with other passengers.

6. See, 5 C.F.R 734.503(c)(2). (2) The allocation method must be applied to all of the relevant costs of mixed travel.