|Advisory Opinion No. 99-11:||Application of the Commission's regulations on the reimbursement for travel expenses (19 NYCRR Part 930).|
The following advisory opinion is issued in response to an inquiry from Francis P. Gerace ("Gerace"), Deputy Commissioner and Chief Engineer for the New York State Department of Transportation ("DOT"), concerning the application of Commission's regulations on the Reimbursement of Travel Expenses, 19 NYCRR Part 930.6, to DOT employees accepting travel reimbursement from entities that are comprised of both government agencies and private sector parties.
Pursuant to its authority under Executive Law §94(15), the State Ethics Commission ("Commission") renders its opinion that DOT employees may accept travel reimbursement as discussed herein.
According to Gerace, DOT is seeking the Commission's interpretation of whether certain organizations and programs in which DOT participates, and in whose direction and outcome DOT has a very large stake, should be considered "disqualified sources" from which DOT employees could not accept travel reimbursement.
Through the agency's participation in these organizations and programs, DOT is able to influence the development of technical engineering and highway safety standards, the conduct of transportation related research, the development of national and international transportation policy, and the development of funding programs which ultimately benefit the State and DOT's transportation program. Gerace states that the loss of being able to fully participate in these activities as a result of not being able to accept travel reimbursement would create a significant hardship on DOT's operating budget and would ultimately have a profound negative effect on the State's transportation systems.
As part of their official duties for the State, DOT employees participate as committee chairs, research panelists, advisors, program specialists and technical experts. In exchange, the organizations and programs provide the DOT employees with transportation tickets and lodging, or reimburse the DOT employee for such travel expenses, using the rates set by the federal government for lodging and meals.
Gerace asks whether the Commission's regulations would permit direct in-kind or reimbursed travel expenses from the following organizations.
The American Association of State Highway and Transportation Officials ("AASHTO") is the national organization which represents the interests of member agencies in providing leadership, technical services, information and advice, and by contributing to national policy on transportation issues. AASHTO is composed only of governmental entities as its membership is limited to those departments or agencies of the states in which official highway responsibility lies. DOT pays $49,039 in annual membership dues to AASHTO.
The Transportation Research Board ("TRB") is a unit of the National Research Council which serves the National Academy of Sciences and the National Academy of Engineering. TRB's purpose is to stimulate research concerning the nature and performance of transportation systems, to disseminate the information produced by the research, and to encourage the application of appropriate research findings. TRB's program is carried out by more than 400 committees, task forces and panels composed of nearly 4,000 volunteer members, including researchers and practitioners in a wide variety of fields from the public and private sectors, and academia. The program is supported by state transportation and highway departments, the modal administrations of the U.S. Department of Transportation, and other organizations and individuals interested in the development of transportation. DOT pays $227,000 in annual membership dues to TRB with the understanding that part of the dues are to be used to pay the travel expenses of DOT employees engaged in TRB related activities.
The National Cooperative Highway Research Program ("NCHRP") is a program of AASHTO. It is funded entirely with federal funds administered by TRB under contract to AASHTO. NCHRP was created to conduct research in acute problem areas that affect highway planning, design, construction, operation and maintenance. State departments of transportation are the sole sponsors of NCHRP. Support is voluntary as funds are drawn from the state's Federal Aid Highway apportionment of State Planning and Research ("SPR") funds which amount to 5.5% of each participating state's annual SPR apportionment. After the AASHTO Standing Committee on Research establishes the annual NCHRP research program, TRB implements it through the establishment of expert panels to guide the research. Panel members are all members of AASHTO, and their travel is funded by the federal SPR monies that the states contribute toward the program.
In addition to these three specific organizations and programs, the U.S. Department of Transportation, the Federal Highway Administration, the Federal Transit Administration and the Federal Aviation Administration often contract directly with private sector transportation related or engineering oriented organizations to conduct research, develop standards, and to provide training. Such organizations include, among many, the Institute of Transportation Engineers, the American Society for Civil Engineers, and the National Electrical Manufacturers Association. Contracts with these organizations include funding for DOT employees to travel to participate but the checks for reimbursement are drawn against the contract organization or association's accounts rather than the federal government. DOT would like agency employees to participate in the activities of these organizations as appropriate when solicitations for their participation clearly state that the federal government is providing the funding for the program, and the organization or association is under contract with the federal government for the service.
A disqualified source, pursuant to 19 NYCRR Part 930.6(a)(7), is defined as an organization, other than a governmental entity, which:
(i) is regulated by, regularly negotiates with, appears before on other than a ministerial matter, does business with or has contracts with either the State agency employing the covered individual or the covered individual in his or her official capacity on behalf of the State agency; or
(ii) attempts to lobby or to influence action or positions on legislation or action on rules, regulations or rate making before either the State agency employing the covered individual or the covered individual in his or her official capacity on behalf of the State agency; or
(iii) is involved in litigation, adverse to the State, with the State agency with which the covered individual is employed or affiliated, or the covered individual in his or her official capacity, and no final order has been issued; or
(iv) has received or applied for funds from the State agency employing the covered individual at any time during the previous calendar year, up to and including the date of the proposed receipt of the honorarium.
Gerace's inquiry is twofold: (1) whether DOT's paying of membership dues to certain organizations is the equivalent of their "receiving funds" from the State agency under subparagraph (iv) quoted above; and (2) whether payment by the federal government to contractors who, in turn, provide travel reimbursement out of federal funds to DOT employees, is permissible where the contractor is an otherwise disqualified source.
In Advisory Opinion No. 91-8, the Commission considered whether State professional board representatives from the State Education Department ("SED") could accept travel reimbursement from several different national councils to which SED paid membership dues. Three of the national councils were composed exclusively of representatives of state professional boards and performed "quasi-governmental functions". In that opinion, the Commission concluded that ". . . membership alone in a national council of state professional boards does not constitute doing business or having a contract with an organization which would preclude the acceptance of reimbursement for travel expenses". Because of the public status of the membership and their function, the Commission concluded that SED employees could accept travel reimbursement from those three national councils.
In contrast, another national council also served as a professional organization and was composed of non-government officials who were directly regulated by the State professional board. The Commission held that because its members were not comprised solely of state professional board members, and because its members were regulated by the State Board, SED employees could not accept travel reimbursement from the national council.
In the situation Gerace presents, AASHTO is comprised solely of government officials and state departments of transportation are the sole sponsors of NCHRP. Thus, following the precedent set in Advisory Opinion No. 91-8, DOT employees may accept travel reimbursement from AASHTO notwithstanding the fact that DOT pays membership dues to the organization. Likewise, the Commission concludes that DOT employees may accept travel reimbursement from NCHRP because the travel is funded by the federal SPR monies which the states contribute to the program.
A second organization, TRB, has members from the public and private sectors. Presuming that the private sector members are not otherwise engaged in activities that would disqualify them under 19 NYCRR 930.6(a)(7)(i-iv), then the Commission concludes that DOT employees may accept travel reimbursement from TRB. Examples of disqualifying activities include lobbying the DOT, and contracting with it or being subject to DOT regulation. An entity's having private sector members, alone, does not preclude the entity from reimbursing State employees for travel expenses. Based on Advisory Opinion No. 91-8, the appearance of a conflict of interest to be avoided is that private individuals who have a relationship with the State agency may seek to curry favor by offering travel expense reimbursement to State employees. This appearance will not arise if the private sector members have no such relationship.
The Commission also concludes that it is permissible for DOT employees to accept travel reimbursement made through a disqualified source under the conditions place by Gerace, i.e., the solicitation for their participation clearly states the federal government is providing the funding for the program, and the organization or association is under contract with the federal government for this service.
The Commission concludes that DOT employees may accept travel reimbursement as discussed herein.
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.
All concur:Paul Shechtman, Chair
Dated: June 16, 1999