New York State Ethics Commission
Alfred E. Smith State Office Bldg.
80 South Swan Street, 11th Floor, Suite 1147
Albany, NY 12210
Application of Public Officers Law § 74
to a State employee who wishes to provide an
for a device he invented in which he and his
State agency share a pecuniary interest.
The following advisory opinion is issued in response
to a request submitted by Paul R. Kietzman ("Kietzman"),
General Counsel for the New York State Office of Mental
Retardation and Developmental Disabilities ("OMRDD"),
who asks to what extent, if any, [ ], an employee of OMRDD,
may endorse a device which he created while employed by
OMRDD without violating the Public Officers Law.
Pursuant to the authority vested in it by Executive Law
§ 94(15), the New York State Ethics Commission ("Commission")
renders its opinion that [the State employee] may serve
as a spokesperson for the device provided that he and OMRDD
abide by the guidelines set forth in this opinion.
In 1998, [the State employee], a [job title] for the
[ ] Developmental Disabilities Services Office ("DDSO"),
a facility of OMRDD, developed a bracket device for use
with bed rails. In 1999, [the State employee], represented
by counsel, agreed that the invention was a result of his
with the issue of bed safety on behalf of OMRDD and, therefore,
entered into an agreement whereby he assigned the rights
to the invention to OMRDD and agreed to share the royalties
in accordance with the agency's approved patent policy,
pursuant to Public Officers Law § 64-a.1
OMRDD intended for its closely affiliated Research Foundation
to find a potential licensee who would be interested in marketing
the invention but this was never accomplished.
Through 2000 and 2001, [the State employee] contacted
the Commissioner of OMRDD and others, and argued that his
invention should be used because it was a significant safety
As a result, in an agreement approved by the Office of the
New York State Comptroller, OMRDD transferred the rights
to the device back to [the State employee], but OMRDD retained
the right to receive 50% of the royalties if the invention
was further developed and commercialized.
In the Fall of 2002, [the State employee] filed a patent
application for the device; it is now pending before the
United States Patent and Trademark Office. [The State employee]
has also found a potential licensee/co-venturer interested
in manufacturing and selling the device: [ ]Manufacturing
Company, a privately held company in [ ]. [The company]
has a reputation for producing hospital pediatric cribs and
youth beds, including the [ ] Bed, which is currently used
OMRDD, its DDSO's and a number of OMRDD's voluntary providers.
In his capacity as [job title] and as a bed rail safety expert
for OMRDD, [the State employee] has often been asked to
on and recommend appropriate beds for consumers.
In February 2003, [ ], the President of [the company],
[the State employee] and [ ], an attorney with OMRDD, met
to discuss the marketing of the device. [The company president]
is interested in the device but would like to use [the State
employee] as a spokesperson in order to market and sell the
device.2 [The State employee] has agreed that if he is permitted
to endorse the product he will not identify himself as an
employee of New York State or OMRDD, but only as an individual
who specializes in bed safety for a public-sector agency
that oversees services to developmentally disabled individuals.
Kietzman believes that the marketing of this device has
potential value to New York State in royalty income and will
benefit consumers in need of the safety device; he reports
that OMRDD favors [the State employee] being allowed to endorse
Public Officers Law § 74 sets forth the Code of Ethics
for State officers and employees.
The rule with respect to conflicts of interest, contained
in Public Officers Law § 74(2), states:
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) provides standards of
. . . .
(d) No officer or employee of a state agency. . .
use or attempt to use his official position to secure unwarranted
privileges or exemptions for himself or others.
. . . .
(h) An officer or employee of a state agency. . .
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.
Section 74 addresses not only actual conflicts of interest
but also conduct that gives rise to the appearance of a conflict.
The code addresses the conflict between the obligation of
public service and private, often personal, financial interest.
The present case is unique in that [the State employee] created
the bracket device as a result of his work on behalf of
OMRDD, and he and ORMDD have agreed to share royalties from
it. Thus, an endorsement of the device by [the State employee]
that fairly describes its merits is in the State's interest,
as well as his own. Compare Advisory Opinion No. 96-21 (discussing
the ethical obligations of a State employee who wrote a
on his own time related to his public duties).
Under the unique circumstances of this case, the Commission
finds nothing objectionable in what is proposed — [the
State employee] serving as spokesperson for the device and
identifying himself as a specialist in bed safety employed
by a public agency that oversees services to developmentally
disabled individuals. There are, however, two ethical restrictions
that must be adhered to so as to avoid the potential for
a conflict of interest. First, as OMRDD and [the State employee]
will benefit from the sales of the device, providers that
are regulated and licensed by OMRDD should not feel in any
way compelled to purchase the bed rail. Thus, neither [the
State employee] nor OMRDD should receive any royalties or
other forms of compensation from sales to OMRDD licensed
and regulated providers. Second, given that OMRDD and its
DDSO's use the [ ] Bed, [the State employee] should not comment
or make any recommendations regarding the [ ] Bed or any
other product [the company] manufactures, as the appearance
of a conflict would be created between his State duties and
his private financial interest if he were to do so [see,
Public Officers Law § 74(3)(d)].
The Commission concludes that [the State employee] may
endorse the bracket device provided that he does not place
OMRDD's or the State's imprimatur on the endorsement and
that he and OMRDD adhere to the conditions expressed in this
This opinion, unless and until amended or revoked, is
binding on the Commission in any subsequent proceeding concerning
the person who requested it and who acted in good faith,
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.
Carl H. Loewenson, Jr.
Susan E. Shepard, Members
Dated: January 29, 2004
. This section of law permits a State agency
to establish a patent policy, with the approval of the
State Comptroller and the Director of the Division of
the Budget, which authorizes additional compensation
or royalties to a State employee.
2. Kietzman cites as an example a similar endorsement
used in the marketing of a pediatric crib called the
[ ]Critical Care Crib developed by a Dr. [ ], of [ ],
who appears in [the company's] promotional videos.