New York State
Ethics Commission


Advisory Opinion No. 93-14: Application of Public Officers Law §§73 and 74 to State employees who wish to serve as adjunct faculty, advisors or mentors at the State University of New York or the City University of New York.

Introduction

This opinion is issued in response to an inquiry by {a State agency] whether it is permissible under Public Officers Law §§73 and 74 for its employees to serve in employee or contractor status as adjunct faculty, as advisors and as mentors/tutors at various campuses in the State University of New York ("SUNY") and City University of New York ("CUNY") systems; and whether the answer to that question is different if [the State agency] has designated the employees as policymakers, or if [the State agency] contracts with the academic institutions which the employees serve.

Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by Executive Law §94(15), the Commission hereby renders its opinion that Public Officers Law §74 applies to the outside activities of State officers and employees. It is generally permissible under §74 for State officers and employees, whether or not designated as policymakers, to serve in employee status as part-time faculty, advisors and mentors/tutors at SUNY and CUNY, assuming the Civil Service Law dual employment requirements, described below, are met. State employees may serve as independent contractors with SUNY and CUNY only if the requirements of Public Officers Law §73(4) and (7) have been met and there are no §74 issues with such service.

Background

[The State agency] informed the Commission that a significant number of its employees over the course of time have requested permission to serve as adjunct faculty, as advisors and mentors/tutors for various colleges in the State and City University of New York systems. [The State agency] defines "adjunct faculty" as part-time, as opposed to full-time, faculty members. Although [the State agency] has historically approved such requests, the agency now seeks to confirm with the Commission that such outside activity is permissible under the Public Officers Law.

Applicable Law

Public Officers Law §73(1)(g) defines "state agency" to mean:
. . . the state university of New York or the city university of New York, including all their constituent units except community colleges and the independent institutions operating statutory or contract colleges on behalf of the state.

Public Officers Law §73(4) states, in pertinent part, the following:

(a) No . . . state officer or employee . . . or firm or association of which such person is a member, or corporation, ten per centum or more of the stock of which is owned or controlled directly or indirectly by such person, shall (i) sell any goods or services having a value in excess of twenty-five dollars to any state agency . . . unless such goods or services are provided pursuant to an award or contract let after public notice and competitive bidding.

Public Officers Law §73(7)(a) states:

No . . . state officer or employee, other than in the proper discharge of official duties . . . shall receive, directly or indirectly, or enter into any agreement express or implied for, any compensation, in whatever form, for the appearance or rendition of services by himself or another in relation to any case, proceeding, application or other matter before a state agency where such appearance or rendition of services is in connection with:

(i) the purchase sale, rental or lease of real property, goods or services, or a contract therefor, from, to or with any such agency;

. . . .

Public Officers Law §74(2) provides:

No officer or employee of a state agency, . . . should have any interest . . . 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)(h) provides:

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.

Civil Service Law §6.3 "Dual employment in State service" provides:

No officer or employee regularly employed in a position in the classified service in any State department or agency shall, while continuing to hold such position, accept appointment or employment in any other position or title, or in any capacity whatsoever, on a full-time or part-time basis, either in the classified or unclassified service, in another State department or agency, or in the Legislature or the judiciary, for which employment compensation or salary is payable, without the previous consent in writing of the head of the department or agency in which he is regularly employed. Such written consent shall be required, in each case, for each such additional appointment or employment accepted or undertaken by such officer or employee, and a copy thereof shall be filed by the head of the department or agency in the office of the Comptroller. A wilful violation of the provisions of this section shall be deemed sufficient cause for disciplinary action, including removal. This section shall not apply to the employment by the Department of Civil Service of an officer or employee of another department or agency of the State to act as an examiner in a civil service examination or examinations or to prepare or review test questions, appeals from examination ratings or other examination materials.

Discussion

Sections 73 and 74.

[The State agency] has asked whether the Public Officers Law limits its employees' ability to be employed by or to contract with either SUNY or CUNY, and, if so, whether the law's application varies depending on whether the employee is a policymaker or not.(1)

Public Officers Law §73(4) and (7) establish standards which govern whether and how a State officer or employee may contract with any State agency. Public Officers Law §74, the code of ethics, addresses how State officers and employees, whether or not they contract with a State agency, are to avoid conflicts between their public obligations and private interests.

[State agency] employees as SUNY or CUNY employees.

Pursuant to Civil Service Law §6.3, a State employee may be employed simultaneously by two State agencies provided he or she obtains the consent of the agency head where he or she is regularly employed and such consent is filed with the Office of the Comptroller.(2) SUNY officials advised the Commission that all persons serving as part-time faculty are placed on the State payroll, an action SUNY will not take for State employees unless the regular employing State agency submits the dual employment form.(3) [The State agency] confirmed that it routinely submits such forms when its employees are seeking to be employed by another State agency in a part-time capacity.

CUNY officials advised the Commission that its part-time faculty may be characterized in a variety of ways, as they may be paid from regular payroll or through contracts and by grants. Dual employment forms in the latter two cases are not required.

Subdivisions (4) and (7) of Public Officers Law §73 are not implicated when a State officer or employee is hired as an employee of SUNY or CUNY. Public Officers Law §74 governs the outside activities of a State officer or employee employed by SUNY or CUNY.

[State agency] employee contracted for services by SUNY or CUNY.

If, however, a State employee attempts to become an independent contractor (services rendered other than in an employment capacity) with SUNY or CUNY, the provisions of Public Officers Law §73(4) and (7)(a), which set limitations on how a State employee may contract with any State agency, must be met. Furthermore, there should be no unresolved §74 code of ethics issues.

In Advisory Opinion No. 91-5, the Commission reconciled the restrictions of §73(7)(a) with §73(4) as it affects State employees. There, a State employee's appearance before a State agency was found to be proper

[i]n those cases where the contract is to be let after competitive bidding, provided that the State officer or employee does not receive compensation either for the submission of the bid or its preparation or any personal participation in the presentation of the bid/proposal to the awarding agency personnel.

Therefore, the provisions of Public Officers Law §§73(4) and 73(7) permit [the State agency] employees to contract to provide teaching services as an independent contractor or consultant for SUNY or CUNY only where the contract (assuming it has a value in excess of $25) has been let after competitive bid and the employee is not compensated for the effort to secure the bid. After the bid's acceptance, the employee may be compensated for services performed pursuant to the contract, assuming there are no outstanding §74 issues. For example, if SUNY or CUNY has a contract with the State agency where the State employee/university contractor works, it would be appropriate to review the university/agency contract, the specific duties the State officer or employee performs at the State agency and the anticipated duties for the university to assure that the covered individual's contract with SUNY or CUNY does not lead to a violation of Public Officers Law §74.

Conclusion

State officers and employees who wish to serve as adjunct faculty members, advisors or mentors at SUNY or CUNY are subject to the provisions of Public Officers Law §74 and must comply with the standards set forth in that section.

State employees who serve SUNY or CUNY as adjunct faculty, as advisors or as mentors/tutors in an employment capacity must comply with the dual employment requirements of the Civil Service Law and, where appropriate, the Commission regulations on outside activities.

State officers and employees who wish to serve on an independent contractor or consultant basis may do so only if, pursuant to Public Officers Law §73(4) and (7), there has been an award of a contract in excess of $25 after public notice and competitive bidding and the State employee was not paid for the effort to secure the bid and, pursuant to §74 there are no conflicts of interest. Absent competitive bidding, the Commission cannot find that State officers and employees are permitted to sell services to SUNY or CUNY as consultants or independent contractors.

This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding, unless material facts were omitted or misstated by the person in the request for opinion.

All concur:

Joseph M. Bress, Chair

Angelo A. Costanza
Robert E. Eggenschiller
Donald A. Odell, Members

Dated: May 10, 1993


Endnotes

1. The Commission's regulations on outside activities [19 NYCRR Part 932] require that a policymaker who wishes to engage in outside activities from which he or she expects to earn in excess of $1,000 must seek the approval of the agency head and, if earnings would exceed $4,000, the approval of the Commission.

2. As discussed above, a State officer or employee designated as a policymaker by his or her appointing authority must also comply with the requirements of the Commission's regulations governing outside activities.

3. This dual employment process applies only to State employees hired by all the constituent units of SUNY and CUNY except their community colleges and statutory or contract colleges which, pursuant to the definition of "state agency" found in Public Officers Law §73(1)(g), are not covered State agencies.


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