|Advisory Opinion No. 97-26:||Whether Public Officers Law §74 precludes certain employees of a psychiatric center from engaging in an outside activity where there is a relationship between their public and private work.|
The following advisory opinion is issued in response to a request by Thomas R. Cioffi, Assistant Counsel to the Office of Mental Health ("OMH"). He asks whether employees of a unit at the [ ] Psychiatric Center, a facility of OMH, who perform evaluations of individuals and families on reference from the Family Court may engage in the outside activity of overseeing "supervised visits", where such supervised visits are ordered by the Court.
Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") hereby renders its opinion that Public Officers Law §74 precludes the employees from engaging in the outside activity because there is a reasonable perception that their evaluations cannot be made on a fair and independent basis.
[ ] is a psychiatric facility of OMH located in [the site]. It includes a Family Court Services Unit ("FCS") which provides mental health and psychosocial evaluations of individuals and families referred to the Unit by the Family Court of [the site]. Customarily, the individuals and families referred by the Court are the subject of cases relating to visitation, custody, abuse or neglect. The Unit has six full time mental health professionals with graduate or medical degrees.
Three of the six professionals in the FCS unit who perform these evaluations also engage in a private outside activity in which they oversee "supervised visits." These visits occur after a judge of the Family Court determines that a non-custodial parent or other person has visitation rights with a child, but requires that such visits be supervised. Such supervision is usually ordered to protect the interests of the child.
There is no formal list of those who are qualified to supervise visits -- the judges and attorneys simply know who is available in the county. In [the site], almost all of the supervised visits are performed by the three FCS employees engaged in this work. In cases where the Court wants a report from the person supervising the visit, it selects that person. Historically, an FCS employee has been selected in every such case.
[ ], Director of the FCS Unit, has noted that there are two situations in which the public work of the FCS employees could intersect with their role as visitation supervisors when they engage in the outside activity as described. They are both of concern to him.
First, an FCS employee could be retained to supervise visits as part of his or her outside activity in a case that has not previously been referred to the FCS unit. However, at a later date, either in the same or a different proceeding, the Family Court could decide to refer the family or an individual in the family to the FCS unit for evaluation. While referrals from the Family Court are customarily assigned to FCS staff on a rotating schedule, an FCS staff person who has overseen a supervised visit may not, under current procedure, conduct an evaluation of the same family. In such a situation, the evaluation would be assigned to a different FCS employee.
In the second set of circumstances, the Family Court may refer a case to the FCS Unit for an evaluation. After the evaluation has been completed, the Court could determine that there are to be supervised visits. Current procedures prohibit an FCS employee who performed the evaluation from being selected as the person to oversee the supervised visits. Other FCS staff remain eligible for selection as supervisor.
The question presented is whether FCS employees may continue to conduct supervised visits.
Public Officers Law §74(2), the code of ethics for State officers and employees, addresses the conflict between the obligation of public service and private, often personal, financial interest. The rule with respect to conflicts of interest is as follows:
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.
Following the rule with respect to conflicts of interest, Public Officers Law §74(3) provides standards of conduct which address actual as well as apparent conflicts of interest:
(a) No officer or employee of a state agency . . . should accept other employment which will impair his independence of judgment in the exercise of official duties.
. . . .
(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.
. . . .
(f) An officer or employee of a state agency . . . should not by his conduct give reasonable basis for the impression that any person can improperly influence him or unduly enjoy his favor in the performance of his official duties, or that he is affected by the kinship, rank, position or influence of any party or person.
. . . .
(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 in violation of his trust.
. . . .
Section 74 is concerned with both actual and apparent conflicts of interest. It provides minimum standards against which State officers and employees are expected to gauge their behavior. As the Attorney General stated in a 1979 opinion applying Public Officers Law §74(1):
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. . . .
The Commission makes its determinations as to whether to approve or disapprove an employee's outside activity based upon whether the activity is in conflict with the proper and effective discharge of the employee's duties. In making such determinations, the Commission considers the provisions of Public Officers Law §74 outlined above(2), and whether there would be a relationship between the employee's public and private responsibilities. If there would be such a relationship, the Commission examines its nature.
In Advisory Opinion No. 91-3, the Commission considered whether non-policymaking employees of an agency could be employed by a not-for-profit provider licensed and regulated by the agency. It held that such employment was permissible under §74 as long as the employee "is completely removed from the licensing or rate setting functions." Following this opinion, the Commission barred employees of the Office of Mental Retardation and Developmental Disabilities ("OMRDD") from acting as family care providers where their State work involved them in the certification process or the administration of the family care program (Advisory Opinions Nos. 91-11, 94-17). Similarly, surveyors employed by the Department of Health ("DOH") who inspect health care facilities for the agency were barred from outside employment in any facility of the type that they inspected. For example, nurses who inspected nursing homes were barred from employment in any such home, although they were permitted to be employed by hospitals (Advisory Opinion No. 92-24).
In the matter presented here, the FCS unit does not regulate the "supervised visits" performed privately by some of its staff members. However, FCS can make supervised visits a part of its recommendation to the Family Court when it performs an evaluation. Although current practice prohibits an FCS employee who makes such a recommendation from overseeing a supervised visit he or she recommended, an FCS evaluation can create more opportunities for supervised visits, thereby permitting any FCS employee to enhance the employment opportunities of his or her colleagues. This could be perceived as impairing an FCS employee's ability to make independent decisions in performing evaluations in violation of Public Officers Law §74(3)(a). The appearance problem is enhanced by the small size of the FCS unit and by the fact that almost all of the supervised visits in [the site] are performed by FCS employees acting in their private capacities.
A similar problem can arise even when an FCS employee, in his or her outside employment, supervises a visit before there has been any FCS involvement. It is not unusual for an individual or a family subject to an order of supervised visitation to file a petition with the Family Court seeking to modify the outstanding order by permitting unsupervised visits. Since the Family Court may refer a proceeding for such modification to FCS for evaluation, an FCS employee could be placed in the position of reviewing the notes of a co-worker; namely, the individual who supervised the visits. More importantly, the FCS employee's evaluation will significantly influence the Court's decision as to whether or not to continue supervised visits. Thus, the evaluation by the State employee may have the effect of depriving his or her co-worker of outside income. Again, this could be perceived as impairing the ability of the FCS employee to perform a fair and independent evaluation. The small size of the FCS unit enhances these ethical concerns.
Based on the above, the Commission concludes that FCS employees who, as part of their State duties, perform evaluations in cases referred by the Family Court may not engage in the outside activity of supervising visits where an order of the Family Court requires such supervised visits.
The Commission concludes that Public Officers Law §74 precludes the employees of the FCS unit from, in a private capacity, supervising visits, as the outside activity creates the reasonable perception that their evaluations for the Family Court cannot be made on a fair and independent basis.
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.
Evans V. Brewster
Henry G. Gossel
O. Peter Sherwood, Members
Dated: December 17, 1997
1. 1979 Op. Atty. Gen. 66.
2. The Commission also considers the provisions of Public Officers Law §73, but they are not applicable here.