|Advisory Opinion No. 99-02:||Application of Public Officers Law §§73(7) and 74 to an employee of the Long Island Rail Road who wishes to work for contractors doing work for the Metropolitan Transportation Authority and its affiliates and subsidiaries other than the Long Island Rail Road, and for other State agencies.|
The following advisory opinion is issued in response to a request from [ ], an employee of the Long Island Rail Road ("LIRR"), who has inquired about his ability to engage in part-time outside employment as a quality assurance engineer. He wishes to work for contractors doing work for the Metropolitan Transportation Authority ("MTA") and its affiliates and subsidiaries other than the LIRR, as well as for other State agencies.
Pursuant to the authority vested in the State Ethics Commission ("Commission") by Executive Law §94(15), the Commission renders its opinion that neither of Public Officers Law §73(7) nor §74 would prohibit [the requesting individual] from engaging in the proposed outside work, but he may not work for any contractor with which he has dealings on behalf of the LIRR.
[the requesting individual] is employed by the LIRR in the Capital Programs Management Department as a Project Coordinator, which is neither a management nor a policymaking position. This Department is not responsible for quality assurance, as that function falls under a separate department. According to his job description, [the requesting individual] assists in developing, planning, reviewing and coordinating elements of the capital program; assists in the preparation of reports, presentations, research and studies; assists in scheduling and estimating aspects of capital projects; and serves as a liaison between project managers, consultants, contractors, and other LIRR departments. In his three years at the LIRR, he has not been assigned to any projects involving the MTA or any of its other affiliates or subsidiaries.
Prior to his employment with the LIRR, [the requesting individual] worked as a Quality Assurance Engineer for a private company under contract with the New York City Transit Authority ("TA"). His work enabled him to be certified by the TA as a Quality Assurance Engineer. He is an active member of the American Society for Quality ("ASQ") and is ASQ certified. With these credentials, [the requesting individual] has received inquiries as to whether he might undertake part-time work as a quality assurance engineer for firms that have received work from the MTA and its affiliates and subsidiaries, and from other government agencies. He would not work on any contract with the LIRR or on any contract that has not been let by public notice and competitive bidding.
As a quality assurance engineer, [the requesting individual's] duties would be to develop, amend and update the contractor's quality plan; establish quality practices in day-to-day work; develop and maintain quality assurance-related documentation; check the conformance of materials and equipment to the specifications; adhere to the approved quality plan procedures; control subcontractors' quality program and activities by the identification of problems and deficiencies and the taking of corrective actions; and support and prepare for quality audits.
In conversation with the Commission staff, [the requesting individual] has stated that he has had no official responsibilities as a LIRR employee that have caused him to come into contact with the contractors which would employ him. He has also stated that he may have to attend meetings where employees of the State agency for which his services are being performed are present.
Public Officers Law §73(7)(a) provides:
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;
. . . .
Section 74, the Code of Ethics, provides minimum standards against which State officers and employees are expected to gauge their behavior. The rule with respect to conflicts of interest is contained in subdivision 2, which provides:
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.
. . . .
In assessing whether a State officer or employee may engage in an outside activity, the Commission looks to the provisions of Public Officers Law §§73 and 74.
With regard to §73, subdivision (7)(a)(i) prohibits State officers and employees from receiving compensation for appearing or rendering services in relation to a matter before a State agency in connection with the sale of goods or services.(1) In Advisory Opinion No. 91-5, the Commission interpreted the language of this prohibition as follows:
It is important to note that §73(7)(a) only prohibits compensated appearances and the rendition of services in regards to the obtaining of the sale and the submission of the bid to the State agency. Section 73(7)(a) does not prohibit compensation to a State officer or employee who may perform or be retained to perform services pursuant to the contract after it has been awarded through the competitive bidding process, provided that the compensation does not relate back to the appearances or services performed in the obtaining of the contract.
Thus, Public Officers Law §73(7)(a) would not prohibit [the requesting individual] from working on a contract with a State agency as long as he does not receive compensation in connection with a contractor's efforts to obtain the contract.(2)
This leaves the question of whether [the requesting individual's] proposed outside employment would be permissible under the standards of Public Officers Law §74. In assessing whether a State employee may engage in an outside activity, the Commission, in general, considers several factors: the employee's duties on behalf of the agency for which he or she works, the relationship of the agency and the employee to the proposed outside activity, whether the employee would be in a position to use his or her position to secure unwarranted privileges, and whether the outside activity would impair the employee's independence of judgment in the exercise of official duties [see Public Officers Law §74(3)(a), (b), (c) and (d)].
Under these standards, [the requesting individual's] working on a LIRR contract would be problematical. However, since his proposal is to work on contracts with the MTA and its other affiliates and subsidiaries, the question is whether the same concerns arise in these circumstances.(3)
The Commission has had occasion to examine the structure of the MTA and its affiliates and subsidiaries in the context of the two year bar, contained in Public Officers Law §73(8)(a)(i). This section prohibits former State employees from appearing or rendering compensated services in relation to matters before their former agency. In a companion opinion being issued simultaneously, the Commission has explained that the legal analysis under §74 need not be identical with the analysis under §73(8) (See, Advisory Opinion No. 99-05). In the companion opinion, the Commission found that similar facts yielded different results under the two statutes. It must, therefore, determine whether its opinions concerning the MTA and its related corporations, rendered when it examined §73(8), should be followed here, where §74 is the applicable statute.
In its opinions based on the two year bar, the Commission has distinguished between higher and lower level employees of the MTA and its subsidiary and affiliate corporations. It has held that, basically, all former employees of each corporation, with the exception of certain former higher level employees whose duties had extended beyond their particular corporation, have as their former agency only the corporation for which they worked (Advisory Opinion Nos. 95-33, 99-01). Their bar extends only to appearing before that corporation. Since [the requesting individual] is not within that group of high level employees who are within the exception, and his duties relate only to the work of the LIRR, his former agency, at such time as he leaves State service, would be only the LIRR. Thus, as a former LIRR employee, he would be able to appear before and work on a contract with the MTA and any of its subsidiaries or affiliates except the LIRR. The question here is whether he may similarly appear and work while a current State employee.
As noted in the companion opinion issued today, the standards are different for former employees, covered by §73(8)(a), and current employees, covered by §74. However, despite the differences, the Commission holds that, in [the requesting individual's] case, the MTA and affiliates and subsidiaries should be treated similarly for purposes of both sections. Fundamentally, the opinions that have looked at §73(8)(a)(i) have examined the structure of the MTA and its related corporations. This structure, of course, does not change with the statute that is being considered. The Commission's conclusion in Advisory Opinion No. 95-33 was based on its finding that most employees of each of the corporations deal only with matters within their corporation. They do not generally have occasion to deal with any of the related corporations. This is true for [the requesting individual]: as a LIRR employee, he does not have dealings with the TA, Metro North or any of the other MTA related corporations, nor are there any special circumstances here that provide a reason to bar him from working for the related corporations any more than there would be to bar him from working for any other State agency. To him, they are all similarly remote. Thus, there are no circumstances in this case to bar him. Consequently, there is no bar to [the requesting individual's] working for a consultant which is under contract to the MTA or any of its subsidiaries or affiliates other than the LIRR.
One caveat must be noted. Public Officers Law §74 would preclude [the requesting individual] from working for any contractor with which he has official contact in carrying out his responsibilities at the LIRR. This preclusion would extend to his working under a contract with any State agency. Such work on his part would cause the public to perceive that his outside work would affect how he carries out his public responsibilities.
Finally, as with all State employees engaged in outside activities, [the requesting individual's] actions associated with his outside work are not permitted during his work hours and should not interfere with his duties as a Project Coordinator. No State resources of any type may be used to accomplish his outside activity. This applies to telephones, office supplies, postage, photocopying machines, computers and support staff assistance.
The Commission concludes that neither Public Officers Law §73(7) nor §74 would prohibit [the requesting individual] from engaging in the proposed outside activity. However, he may not work for any contractor with which he has dealings on behalf of the LIRR.
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.
Paul Shechtman, Chair
Robert J. Giuffra, Jr.
Henry G. Gossel
O. Peter Sherwood, Members
Dated: January 25, 1999
1. Section 73(4) places additional restrictions on a State employee's working for a State agency, but they do not apply when the work is performed under a competitively bid contract. [The requesting individual] has stated that he will work only pursuant to such contracts.
2. For example, [the requesting individual] could not receive compensation for attending a bidder's conference on behalf of a contractor.
3. [The requesting individual] also seeks to work for State agencies other than those associated with the MTA. There would be no ethical prohibition as to his engaging in such work.