|Advisory Opinion No. 99-05:||Whether Public Officers Law §74 precludes a member of the [ ] Appeals Board from submitting Freedom of Information Law requests to [the Agency in which the Board is located].|
The following advisory opinion is issued in response to a request by Gregory J. Allen, Esq., Assistant Counsel to the Governor. He asks whether an attorney may serve as a member of the [ ] Appeals Board ("Appeals Board") while he routinely submits Freedom of Information Law ("FOIL") requests to the [the Agency in which the Board is located ("the Agency")]. He also asks whether, if such submissions were to give rise to a potential conflict of interest, there are any safeguards that the attorney might employ to prevent or diminish the appearance of, or potential for, a conflict and render the situation permissible.
Pursuant to the authority vested in it by Executive Law §94(15), the New York State Ethics Commission ("Commission") renders its opinion that the attorney may serve on the Appeals Board and submit FOIL requests to [the Agency], but he may not appear on the appeal of the denial of any such request.
Allen advises that the Governor's office is considering for appointment to the Appeals Board an attorney who is a partner of a private law firm that has a practice in which it primarily represents insurance companies in complex coverage disputes with policyholders. Typical issues in which the firm is involved are directors' and officers' liability, professional liability and products liability. The attorney's practice concentrates on insurance and reinsurance coverage disputes involving [ ], and other "long-tail" injury claims.
In the course of handling these cases, the attorney routinely sends FOIL requests to those State administrative agencies that have responsibility for [ ] sites. Among the agencies to which he has sent FOIL requests are the Department of [ ] and [the Agency]. The agencies receiving these requests are required to respond in accordance with their obligations under FOIL.(1) The attorney has stated that the submission of these FOIL requests constitutes the full extent of his contact and involvement with State agencies, including [the Agency].
Allen's request concerns the attorney's ability to serve as a member of the Appeals Board.
Public Officers Law §74(2), which contains the rule with respect to conflicts of interest 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.
Public Officers Law §74(3) sets forth the standards which further explain and define this rule. Of particular relevance to the question posed are:
. . . .
(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 that are in violation of his trust.
. . . .
To respond to Allen's request, the Commission must consider several of its prior opinions, none of which specifically addresses the question presented. In Advisory Opinion No. 93-17, the Commission considered the application of Public Officers Law §74 to the Appeals Board. That opinion concerned a member who wished to represent clients in matters before [the Agency]. The Commission looked to the [Act which created the Board] ("Act") and the role of the Appeals Board in the statutory scheme. [ ] The provisions of the Act are initially enforced by local authorities, but [the Agency] retains jurisdiction and may act when localities fail to enact ordinances to protect their local [ ] or when the Commissioner of [the Agency] identifies certain [ ] as being of unique [ ] value.(2)
The Appeals Board, which consists of five members appointed by the Governor, has the power to hear appeals taken by any party to a proceeding before [the Agency] Commissioner or a local jurisdiction and to review any decision or order made pursuant to the Act. It may, upon the record, legal briefs and oral arguments, affirm, reverse, stay or remand any such order or decision. The Commissioner or local government which issued the order from which an appeal is taken is bound by the decision of the Appeals Board, subject only to further review by a court of competent jurisdiction by way of a proceeding brought by the Commissioner or any other party pursuant to Article 78 of the Civil Practice Law and Rules.
Given the Appeal Board's powers, the Commission concluded that a member may not represent a client in any matter before [the Agency]. It said:
[t]he power to review and reverse the Commissioner's decisions is incompatible with representing clients seeking something of that very Commissioner. If the Board member were to engage in private practice before [the Agency], the public might well infer that, in his role as Board member, he was affected or even influenced by his clients', not the public's, interests. By the very nature of the Board member's position and authority, there would always be the suspicion that the Commissioner or any party before the Board could be treated either favorably or unfavorably depending upon the Board member's success in his representation of private clients before [the Agency].
This opinion makes it clear that the attorney whose appointment is being considered by the Governor's office could not, if appointed, appear on a matter before [the Agency]. Since Allen has advised that the attorney's only contact with [the Agency] is the submission of FOIL requests, the Commission must determine whether the submission of such requests is the type of matter on which an appearance is precluded.
The Commission has never answered this question in the context of Public Officers Law §74. However, it has issued an opinion interpreting the two year bar, contained in Public Officers Law §73(8)(a)(i). In Advisory Opinion No. 89-7, the Commission held that the two year bar, which precludes a former State employee from appearing "in relation to any . . . matter" before his or her former agency, precludes the submission of a FOIL request. It said that the submission of such a request
. . . would not simply be pro forma. Should the request be denied, §89(4) of the Public Officers Law allows an appeal to be filed in writing and representation before such former State agency in order to reverse an initial denial of access to the information. A Freedom of Information Law request made on behalf of a client or other person would be an appearance or practice before the former agency which is prohibited by §73(8). (Footnote omitted).
As noted above, the matter now before the Commission is governed by Public Officers Law §74, as the attorney in question would, at the time of making any FOIL request, be a current State official. The question, then, is whether the conclusion reached for purposes of §73(8) in Advisory Opinion No. 89-7 is to be followed under a §74 analysis.
Clearly, the wording of these two statutes are quite different. Section 73(8)(a)(i) bars any appearance by a former employee before his or her former agency. It is absolute, and not dependent upon the nature of the appearance or the purpose of the appearance.
Section 74 contains no similar rule. Fundamentally, it precludes any State officer or employee from engaging in activities which are "in substantial conflict with the proper discharge of his duties in the public interest." This was the standard that the Commission considered when, in Advisory Opinion No. 93-17, it barred a member of the Appeals Board from appearing before [the Agency]. Thus, it is the standard to be considered here.
In Advisory Opinion No. 93-17, the Commission's concern was the appearance that the Commissioner might look favorably on a member of the Appeals Board who had a matter before him, knowing that the member would be reviewing his decisions made under the [ ] Act, and that the Board member's actions in hearing an appeal might be affected by the Commissioner's actions on his or her other matter before the agency. These concerns are not present when a FOIL application is submitted. Such an application is not passed upon by the Commissioner. By statute, each agency head is required to designate a staff member as a FOIL officer.(3) That officer is responsible for handling all FOIL requests submitted to the agency. Thus, a decision to grant or deny such a request is not made by the Commissioner, and it is almost always unknown to the Commissioner. In addition, the overwhelming number of FOIL requests are without controversy. Thus, the potential for favoritism is, at most, minimal, and the concerns of the Commission, as expressed in Advisory Opinion No. 93-17, are not present. Consequently, the Commission holds that a member of the Appeals Board may submit a FOIL request to [the Agency], even on behalf of a client.
This, however, is not the end of the discussion, as a party submitting a FOIL request has a right to an appeal within the agency if the initial request is denied. Such appeals are uncommon, but the considerations surrounding them differ significantly from those present on the submission of the initial request. An appeal is heard by the agency head or by an individual designated by the agency head.(4) When an individual is designated, it is usually someone at a high level who is much closer to the agency head than the FOIL officer. In addition, appeals, by their nature, present a controverted matter. There is presumably considerable discretion to be exercised on the part of the decision maker, as arguments are presented that would lead to different conclusions. Furthermore, many appeals involve important and sensitive issues, of significance to both the person bringing the appeal and the agency. These considerations lead the Commission to conclude that the prohibition on the appearance of members of the Appeals Board before [the Agency] covers appeals from denials of FOIL requests.
In view of this determination, there is no need to answer separately to Allen's question if there are any steps that might be taken where the prohibition applies to "prevent or diminish the appearance of, or potential for, a conflict of interest".
The Commission concludes that the attorney being considered for appointment to the Appeals Board could, if appointed, submit FOIL requests to [the Agency], but he could not appear on the appeal of the denial of any request.
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 L. Shechtman, Chair
Robert J. Giuffra, Jr.
Henry G. Gossel
O. Peter Sherwood, Members
Dated: January 25, 1999
1. Public Officers Law §84 et seq.
2. Few localities have enacted local laws to enforce the Act.
3. Public Officers Law §87(1)(b)(ii).
4. The Commissioner of [the Agency] has designated the Assistant Commissioner for the Office of [ ] to hear appeals. (6NYCRR Part 616.8.)