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Advisory Opinions

Individuals subject to the Commission's jurisdiction may request the Commission to issue an advisory opinion interpreting the application of the Public Officers Law to State officers and employees. Advisory opinions are issued after approval by a majority of the Commission members. They are binding on both the Commission and the requesting individual in any subsequent proceeding, provided the requesting individual acted in good faith and neither omitted nor misstated any material facts. Although limited to the particular facts presented in each matter, advisory opinions serve as precedent for the determination of other cases.

Summaries of the Commission's most recent advisory opinions follow. Identifying information such as the name of the requestor and, in certain instances, the name of the agency involved, by law, must be removed to protect the privacy of the person requesting the opinion. Copies of the advisory opinions are available on the Commission's website at www.nyintegrity.org.

Readers should refer to the full opinions for a thorough understanding of the facts and reasoning by the Commission.

[NOTE: Unless otherwise stated, all sections of the law referred to in the following opinions are contained in the Public Officers Law. The opinions are numbered based on the year they were issued and the order in which they were approved. For example, Advisory Opinion No. 08-01 is the first opinion issued in 2008.]

The Commission also issues informal advisory opinions approved by the Executive Director. These address issues that have been previously addressed by the Commission and therefore do not require another review. Informal advisory opinions are not public and are not binding on the Commission.

Advisory Opinion 08-01: In response to inquiries that the Commission received concerning the amendments to Public Officers Law §73(5) and their applicability to Advisory Opinion No. 94-16, which dealt with gifts, the Commission determined that the principles enunciated by the Ethics Commission in Advisory Opinion No. 94-16 are applicable to State officers and employees as well as lobbyists who are under the Commission's jurisdiction.

The amended law prohibits gifts of more than “nominal” value, which the Commission defined as “items of insignificant value, as, for example, a regular cup of coffee or a soft drink, are considered nominal. Nominal value would not include a meal nor would it include an alcoholic beverage. However, even items of nominal value can be improper depending on the context.”

Commissioners noted that the law that created the Commission also required the Commission to promulgate regulations pertaining to gifts. Therefore, the principles set forth in this opinion will be re-issued in a regulation. Opportunity to comment will be provided.

Advisory Opinion 08-02: A former senior official at a State (Agency A), requested an advisory opinion, asking whether, during his or her two-year post-employment period, he or she may provide services to a person in connection with a matter before the agency that succeeded Agency A (Successor Agency). The Commission determined that the former State employee may not provide services to any person in connection with a matter before the Successor Agency within two years of leaving Agency A since the individual would be rendering services on a matter before his or her former agency in violation of the post-employment restrictions.

Advisory Opinion No. 08-03: An employee of the New York State Thruway Authority, who was anticipating retirement, asked the Commission for an opinion regarding the application of the post-employment restrictions to his possible work on a Thruway Authority project. The contract covering the project would be awarded within two years of the employee's departure from State service. As part of the contract process, the consultant for whom the employee anticipated working was required to submit the employee's name and credentials to the Thruway Authority for prior approval as part of the bid.

The Commission concluded that the employee may not be employed on the project because the submission of the name and credentials would violate the post-employment restrictions of the law. In reaching its conclusion, the Commission reviewed two opinions of the State Ethics Commission, one of its predecessors.

The Ethics Commission previously determined, in Advisory Opinion No. 04-07, that a former employee of the Department of Transportation ("DOT") could not accept a position as an Office Engineer with a consulting engineering firm because he would report directly to a DOT employee and would have substantial contact with DOT employees. Moreover, the Ethics Commission determined that it would be a prohibited appearance for the consulting engineering firm to submit the name of the candidate for the position of Office Engineer to DOT for approval.

In Advisory Opinion No. 91-17, both a future employer of a DOT employee and the employee requested an advisory opinion as to whether it would be an "appearance" banned by Public Officers Law §73(8) if, within two years of the employee's departure from State service, the employer submitted the employee's resume as part of a bid on a DOT contract proposal. The Ethics Commission determined that the employee's resume could not be submitted, stating that the Ethics in Government Act of 1987, which created the "revolving door" prohibition contained in Public Officers Law §73(8), was "designed to limit opportunities for abuse of official positions and eliminate any appearance of undue influence." Further, the statute was meant to preclude a former State employee from leveraging his or her knowledge, experience or contacts gained after leaving State service to his or her own advantage or that of a client.

The Ethics Commission also had found that the two-year bar prohibits a former State employee from submitting an application or proposal to his former agency, or having a role in negotiating the terms of an application or proposal (see, Advisory Opinion No. 90-03).

Advisory Opinion No. 08-04: The State Inspector General presented two questions not previously addressed by the Commission. The first was whether a State employee who travels on State business and at State expense, perhaps staying overnight at a hotel paid for by the State, and earns "reward" or "bonus" points from a common carrier and/or hotel, may use such points for his or her personal benefit, such as for personal hotel accommodations, cruises, and merchandise. The second question was whether a State employee purchasing office supplies or services for a State agency may accumulate reward points from a vendor of such supplies or services for his or her personal use.

The Commission determined that State officers or employees traveling on State business at State expense would be permitted to use for their personal benefit reward or bonus points earned in connection with such travel when, consistent with the Commission's determination in Advisory Opinion No. 08-01, the awards or points are offered to the general public.

However, the Commission ruled that a State employee purchasing office supplies or services for a State agency is prohibited from accumulating reward points for personal use when purchasing goods or services for State use. Doing so, the Commission opined, would violate Public Officers Law §§73(5) and 74 since such rewards could reasonably be viewed as a means of influencing or rewarding the State officer or employee in how he or she carries out his or her official purchasing duties for the agency.

Under these circumstances, such rewards would constitute gifts that influence or reward a State officer or employee for his or her official actions. Therefore, the redemption of these rewards by a State employee eligible to receive them because of the performance of his or her official duties would violate Public Officers Law §73(5). Moreover, the Commission noted that the State officer or employee may also violate Public Officers Law §74(3)(e) in accepting the reward points because he or she, as a State representative, would be engaging in a transaction in which he or she has a direct or indirect financial interest, i.e. the accumulation of reward points, which might reasonably tend to conflict with the proper discharge of his or her official duties.

Advisory Opinion No. 08-05: A former senior official of a State agency asked whether the post-employment restrictions of Public Officers Law §73(8)(a)(ii) prohibit him from providing expert testimony in litigation concerning the collapse of a bridge located in an area where he worked. The bridge, constructed before he became a senior official, collapsed after he left State service.

The Commission determined that revolving door restrictions do not preclude him from providing expert testimony in a court proceeding where his former agency is a party, as long as he does not testify as to any transactions with which he was directly concerned and in which he personally participated during the period he was the senior official.

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