NYS Ethics 2005 11.p65 by RodneySooialo

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									   The Ethics Report                                  November 2005

             A Publication of the New York State Ethics Commission


                  Ethics Loophole Closed
     Governor George E. Pataki, Sen-        ics law in the last 15 years.”               tive ethics investigations and has re-
ate Majority Leader Joseph L. Bruno              The loophole was exposed by a           sulted in the Ethics Commission taking
and Assembly Speaker Sheldon Silver         1995 Court of Appeals ruling in the          no action on countless of other matters.
agreed on a measure to close the noto-      case of Flynn v. NYS Ethics Commis-               The State Ethics Commission – with
rious “Flynn loophole,” which caused        sion, which held that, with the excep-       the Governor’s support -- had proposed
the State Ethics Commission to lose         tion of the revolving door provisions,       legislation every legislative session since
jurisdiction over State officers and em-    the Ethics Commission loses jurisdic-        1996 to close the Flynn loophole as it
ployees when they left State service.       tion over State officers and employees       pertains to investigations of the State
The Governor signed the bill into law on    when they leave State service. As a          Ethics Commission.
July 12.                                    result, the State Ethics Commission               Mr. Sleight said, “Closing the Flynn
     Karl J. Sleight, Executive Director    may not investigate and sanction former      loophole has been the Commission’s top
of the New York State Ethics Commis-        State officers and employees. The rul-       legislative priority for several years.
sion, said, “This is the most important     ing has caused the State Ethics Com-         We applaud the Governor and the Leg-
and significant improvement to the eth-     mission to close approximately 50 ac-        islature for taking this critical step.”

Department of Taxation and
Finance Wins Ethics Award
     The New York State Ethics Commission has awarded the
2005 Theodore Roosevelt Ethics Award to the New York State
Department of Taxation and Finance.
     The award is presented annually to a State agency that
exemplifies a commitment to ethics by maintaining high ethical
standards at the agency and through its cooperation with the
State Ethics Commission.
     Karl J. Sleight, Executive Director of the Ethics Commis-
sion, said, “Employees at the Department of Taxation and
Finance often have access to personal and confidential infor-
mation and must be acutely aware of the need for strict
adherence to principles of ethics and governmental integrity.
The collective efforts of the employees of Tax and Finance in
the area of ethics in government is a tribute to their agency and
the State.”
     “Tax Department employees are energetic, skilled and
hard working, dedicated to providing superior public service to
our customers - the people of the State of New York. Our
workers train hard to maintain the highest ethical standards in
the services we provide, and take seriously our commitment to       Deborah Dammer, Director of Human Resources
insure the safety and security of all personal taxpayer informa-    Management for the Department of Taxation and Finance,
tion.” said Andrew S. Eristoff, Commissioner of the New York        accepts the 2005 Theodore Roosevelt Ethics Award from
State Department of Taxation and Finance.                           Karl J. Sleight, Executive Director of the New York State
                                                                    Ethics Commission
                                           (continued on page 3)
                                         Summary of 2005 Advisory Opinions

                   Some Commercial Discounts Approved
    Advisory Opinion No. 05-1: This             ment employees as well. As such, it             earned in excess of the job rate of a
advisory opinion was issued in response         cannot be considered a prohibited gift          Grade-24 and would be a required filer.
to two separate questions regarding             (for employees whose agencies do busi-                The Commission determined that
whether State officers and employees            ness with Sprint) or an unwarranted             pursuant to Public Officers Law §73-a,
may accept broad-based commercial               privilege of government service.                it is the job rate of the position in which
discounts from private companies.                     The same holds true for a discount        the State officer serves as of April 1st of
    The first question is submitted by          to government employees offered by              the year in which the form is due, and
an attorney at the Office of Temporary          hotels when an employee is not on State         not the actual compensation received
and Disability Assistance (“OTDA”),             business. Under similar circumstances,          during the previous calendar year, that
who asked whether an OTDA em-                   the federal Office of Government Eth-           determines whether an individual is sub-
ployee may accept personal discounts            ics (“OGE”) reached the same conclu-            ject to the financial disclosure require-
of goods and services offered by a              sion, reasoning that because “the dis-          ments.
telecommunications company, Sprint              count is to a class as large and diverse
PCS, that provides wireless telephone           as all Government employees, there is                Advisory Opinion No. 05-03: A
service to her agency. The second               little likelihood that the [hotel] is seeking   private company asked if one of its
question is submitted by an employee of         to gain influence or to supplement em-          officers, a former employee of the Met-
OTDA, who inquired whether he might             ployees’ salaries.” In approving the            ropolitan Transportation Authority
obtain a hotel room for personal use at         practice, the OGE, however, empha-              (“MTA”) and the New York City De-
                                                sized that “the employee may not mis-           partment of Transit (“NYCT”) could
                                                represent the purpose of the travel, i.e.,      respond to a solicitation by NYCT con-
                                                say that he or she is on business, in order     cerning next generation smart card tech-
                                                to get rates that are not available for         nology. The former employee was the
                                                personal travel.”                               architect of Metro Card, currently in
                                                      The Commission believes that New          use by the MTA.
                                                York employees should go one step                    The Ethics Commission concluded
                                                further. In such situations, a State            that the lifetime bar does not prohibit the
                                                employee must affirmatively represent           former State employee from providing
                                                to hotel management that he or she is on        information to NYCT on the adaptabil-
                                                personal business. Not to do so would           ity of smart card technology to the
the government rate where the hotel             create too high a risk that the employee        transit environment because it is a new
management is aware that he is not              has improperly gained a benefit to which        transaction.
traveling on government business.               he or she was not otherwise entitled. If,            The Commission noted that four-
     When the discounts at issue are            knowing that an employee is traveling           teen years had elapsed since the Metro
broadly available to all State employees        on personal business, a hotel chooses to        Card system, based on magnetic tech-
and there is no indication that the com-        extend an existing discount as part of its      nology, was introduced and six years
panies involved intend to influence any         standard practice, the State’s ethics           since the former State employee left
employee in the performance of his or           law are not violated.                           NYCT, and that technical advance-
her public duties, the Commission con-                                                          ments not available at the time of Metro
cludes that the discounts may be ac-                Advisory Opinion No. 05-2: A                Card’s implementation were being con-
cepted.                                         professor at the City College of New            sidered by the NYCT as the next gen-
     The Commission had no difficulty           York, a college of the City University of       eration of smart cards. There was no
in concluding that a State employee             New York (“CUNY”) argued that be-               reason to believe that the former em-
may participate in the Sprint national          cause his actual compensation from              ployee has inside information or will be
discount plan. That plan is sufficiently        CUNY for 2003 was $69,076.23 and                trading on his prior government service
broad-based to allay concerns that the          less than the filing rate of $70,851, he
discount is offered to influence employ-        should not be required to file the 2004
ees in the performance of their public          financial disclosure statement although             Ethics Commission
duties. It is available not only to all State   he acknowledged that, but for his being                   web site
employees (which would be sufficient            on half-pay sabbatical leave for the               www.dos.state.ny.us/ethc/
in itself) but to federal and city govern-      Spring 2003 semester, he would have                      ethics.html
                                                                      2
Summary of 2005 Advisory Opinions (cont. from page 2)                                    Ethics Award
to advantage his private sector em-          services and the grant funds, the former
                                                                                                              (cont. from page 1)
ployer. Thus, any proposal to replace        boss proposed an alternative: the former
the existing magnetic card system with       State employee would retire from State            The Ethics Award is presented to
next generation smart card technology        service, take a position with the Foun-     that State agency that best demon-
is a new and separate transaction.           dation, and continue his research through   strates a commitment to ethics in gov-
                                             the agency and receive a salary com-        ernment, as outlined in ten criteria, in-
     Advisory Opinion No. 05-04:             mensurate with his former employment        cluding:
The Commission was asked about the           at OMRDD. Unlike other closely affili-            – designating a person to perform
application of the two-year bar post-        ated corporations, the Foundation does      the functions of an Ethics Officer, thus
employment restrictions to a retired         not participate in the State’s retirement   ensuring that the agency meets its obli-
scientist with the New York State Of-        system and thus the former OMRDD            gations under the ethics laws, and to act
fice of Mental Retardation and Devel-        employee was not subject to a cap on        as a liaison with the Ethics Commission;
opmental Disabilities (“OMRDD”) who          earnings. The arrangement would al-               – developing an orientation pro-
went to work for the Research Founda-        low the agency to benefit from the          gram which includes informing new
tion for Mental Hygiene (“the Founda-        funding and prestige of the former State    officers and employees of their obliga-
tion”), the closely affiliated research      employee’s grant without disadvantag-       tions under the ethics laws and how
corporation of OMRDD, and is work-           ing him financially.                        they may make complaints to, or seek
ing on a federal grant for which he is the        The Commission’s opinion noted         advice from, their supervisors, the Eth-
principal investigator.                      that, “[the former State employee] did      ics Officer, or the Ethics Commission
     The Ethics Commission concluded,        nothing to garner unfair advantage and      about ethics law matters;
under the unique circumstances of the        it [is] abundantly clear that he would            – conducting, or allowing the Ethics
case, that the law does not prohibit the     have had no difficulty finding another      Commission to conduct, ethics training
former State employee from working           position most likely with a salary well     programs approved by the Ethics Com-
on what is, in essence, his grant while at   above that provided by the Founda-          mission, informing the agency’s offic-
his former agency’s closely affiliated       tion.” Put simply, his employment with      ers and employees of their obligations
corporation.                                 the Foundation benefits the State, and is   under the ethics laws;
     In early 2003, the former State         not an unwarranted privilege that he              – taking appropriate measures to
employee was notified that he was to         obtained by virtue of his former            foster compliance with the timely filing
receive a new five-year grant from the       OMRDD position. On these unique             of financial disclosure statements by its
National Institute of Health with a bud-     facts, the Commission had no difficulty     covered employees.
get of more than $7,000,000. Then            concluding that the former State                  The Department received a plaque
eligible for retirement, he concluded        employee’s employment at the Foun-          inscribed with the following quote from
that it was time to retire from OMRDD        dation does not violate the ethics law.     the former Governor of New York:
and seek employment outside the State        In a footnote, the Commission sug-          “We can afford to differ on the cur-
system. According to the former State        gested that in the future, the agency       rency, the tariff, and foreign policy; but
employee and his former boss, it is          head who wishes to employ a retired         we cannot afford to differ on the ques-
common practice for a Principal Inves-       former employee at the agency’s closely     tion of honesty if we expect our republic
tigator to take a grant with him upon        affiliated arm should consider seeking      permanently to endure.”
relocating to another institution. Rather    an exemption pursuant to Public Offic-            Theodore Roosevelt earned a repu-
than lose the former State employee’s        ers Law §73(8-b).                           tation for opposing government corrup-
                                                                                         tion while in public office. In particular,
                                                                                         he supported civil service reform as a
                                                                                         member of both the New York State
    THE ETHICS REPORT is published by the New York State Ethics                          Assembly and the federal Civil Service
                                                                                         Commission, as President of the New
Commission, 39 Columbia Street, Albany, New York 12207. Telephone
                                                                                         York City Police Board and as Gover-
518-432-8207 or 800-87-ETHICS.                                                           nor.
   The Commission's e-mail address is ethics@dos.state.ny.us                                   Previous winners include the State
    In order to reduce the costs of publication, please notify the Commission            Insurance Department, the Governor’s
                                                                                         Office of Employee Relations, the Of-
if you wish your name to be deleted from our mailing list or if your address
                                                                                         fice of General Services, and the State
has changed.                                                                             Department of Agriculture and Mar-
                                                                                         kets.
                                                               3
      Gift Rules Apply to Holidays and Parties
     With the approach of the holiday         that did business with her agency to        accessible to other employees. The
season, the Commission reminds State          give promotional items, such as clocks      employee who received the gift also
employees that the ethics law covers          and calendars, to the holiday party of a    should contact the donor and tell them
both the solicitation and receipt of gifts.   financial executives’ organization of       that State law prohibits him or her from
     State employees must be careful          which she was vice-president.               accepting such gifts in the future.
not to violate the law at what is other-          Since then, the Commission has               Gift baskets with non-perishable
wise a joyous time of year. Some              responded to many questions about the       goods, such as bottles of liquor or elec-
employees have sought guidance on             receipt of gifts. For example, if a gift    tronics, should be returned. In some
soliciting gifts such as door prizes at       basket of flowers or edible items is        cases, the sender can be called and told
holiday parties, while others ask what        delivered to a State agency on behalf of    to pick up the basket at the agency.
they should do if a gift basket is deliv-     a disqualified source, the designated            State employees need to be careful
ered to the office.                           recipient should endeavor to send it        about attending holiday parties at ven-
     Most State employees know that                                                       dors’ offices. Some vendors may have
Public Officers Law §73(5) prohibits                                                       door prizes that are given to selected
them from soliciting or accepting any                                                          attendees. State employees should
gift worth $75 or more, when it could                                                            not attempt to use such parties as
be reasonably inferred that the gift                                                             cover for accepting improper gifts.
was intended to influence or could                                                                  In its 1994 opinion on gifts, the
reasonably be expected to influence                                                            Commission noted that State agency
them in the performance of official                                                           heads have a duty to make sure their
duties or was intended as a reward                                                           employees comply with the require-
for any official action. These gifts                                                        ments of the ethics law. It urged them
cannot be received from a disquali-                                                        to communicate the restrictions on gifts
fied source, which is a person or entity                                                  to their employees, vendors, prospec-
that is regulated by, does business with,                                                 tive vendors, regulated entities and any-
appears before or negotiates with the                                                     one else with an interest in agency
employee’s agency; lobbies or has liti-                                                   actions; establish procedures by which
gation adverse to the agency; applies                                                     employees either seek prior approval
for or receives funds from the agency;                                                    for the receipt of gifts or report them
or contracts with the agency or another       back. If that is not possible, either be-   after the fact; and consult with the
agency when the employee’s agency             cause the delivery person has left the      agency ethics officer or the Ethics Com-
receives the benefit of the contract.         building or is not authorized to accept a   mission to resolve any outstanding is-
     State employees also need to know        return, the basket and its contents must    sue. See page 5 for a listing of permis-
that Public Officers Law §74 prohibits        be placed in an open area where it is       sible and impermissible gifts.
State employees from soliciting or ac-
cepting a gift of any value if it would
constitute a substantial conflict with the
proper discharge of their State duties.
                                                                     Words to ponder
     In 1993, the Commission issued a              You cannot have honesty in public life unless the
Notice of Reasonable Cause to the
                                                average citizen demands honesty in public life. If you
chief financial officer of a State author-
ity who had arranged for three banks
                                                habitually suffer your public representatives to be
                                                dishonest you will gradually lose all power of insisting
                                                upon honesty. If you let them continually do little acts
       Save the Date                            that are not quite straight you will gradually induce in
                                                their minds the mental attitude which will make it
   The 2006 New York State                      hopeless to get from them anything that is not
  Leadership & Accountability                   crooked. We can as little afford to tolerate a dishonest
         Conference                             man in the public service as a coward in the army.
   Wednesday, May 3, 2006                                                        - Theodore Roosevelt


                                                                 4
                          Rules on Gifts                                                     Opinion Finding
     The State Ethics Commission has
issued Advisory Opinion No. 94-16,
                                              your agency or another agency when             Guide Available
                                              your agency receives the benefit of the             The Commission has created an
describing (1) those gifts that may not       contract.                                      Opinion Finding Guide located on its
be offered to or accepted by State                 You are prohibited from soliciting        website at http://www.dos.state.ny.us/
officers and employees, and (2) those         or accepting a gift of any value if it         ethc/ao.html. The Commission has is-
gifts that are acceptable. The following      would constitute a substantial conflict        sued more than 300 formal advisory
are the most important points.                with the proper discharge of your State        opinions since its inception, so this guide
                                              duties. If you knowingly and inten-            makes it easier for you to find the
Applicable Rules                              tionally do so, you are subject to             relevant opinion without having to read
     A gift may be in many forms, in-         fines, suspension or removal from              through ones that are unrelated to your
cluding money, loan, travel, meals, re-       your job by your appointing author-            issue.
freshment or entertainment.                   ity.                                                Clicking on the link takes you to a
     The value of a gift is the retail cost                                                  web page on which advisory opinions
to purchase it; the value of a ticket         What You Can Do                                are divided into the following catego-
entitling you to food, refreshments, en-           The following can be accepted with-       ries: post-employment restrictions, gifts,
tertainment, etc. is the face value of the    out violating the law:                         outside activities, code of ethics, finan-
ticket; if no value is indicated, the value        reasonable and customary presents         cial disclosure, and honoraria & travel
is the actual cost to the giver. Multiple     given on special occasions;                    reimbursement. Then, by clicking on
gifts from a single source given over a            gifts given by someone based on a         the appropriate link, you are connected
twelve-month period that add up to $75        family or personal relationship with you;      with a list of opinions on that topic.
or more will be deemed to be one gift of           an invitation to attend personal or
the total value of all the gifts.             private events with no connection to the
     The offer of reciprocity, or even        State;
actual reciprocity, does not reduce the            meals received when you serve as
value of a gift given to you.                 a participant or speaker in a job-related
     You may not designate a friend,          professional or educational program and
family member or entity (for example, a       meals are available to all participants;
charity) to receive a gift that you cannot         modest items of food and refresh-
receive.                                      ment offered other than as part of a
                                              meal;
What You Cannot Do                                 unsolicited advertising or promo-              The Commission issues advisory
     You are prohibited from soliciting       tional material of little intrinsic value;     opinions interpreting the application of
or accepting any gift worth $75 or more,           most awards and plaques presented         Public Officers Law sections 73, 73-a
when it could be reasonably inferred          in recognition of your service;                and 74, often referred to as the “ethics
that the gift was intended to influence            rewards or prizes given to competi-       law.” The opinions, which are issued
you or could reasonably be expected to        tors in contests or events, including          upon approval of a majority of the Com-
influence you in the performance of           random drawings open to the public;            mission members, are binding on both
your official duties or was intended as a          under some circumstances, meals,          the Commission and the individual re-
reward for any official action. If you        entertainment or hospitality, but not travel   questing the opinion in any subsequent
knowingly and intentionally do so,            or lodging, from a disqualified source         proceeding, providing that the request-
you are subject to a civil penalty of         when your participation at an event is         ing individual acted in good faith and
up to $10,000 or being criminally             for a State agency purpose and related         neither omitted nor misstated any mate-
charged with a Class A misdemeanor.           to your official duties—that is when           rial facts in the case. Each formal
     Gifts of $75 or more cannot be           your participation will further agency         opinion discusses the application of the
received from a disqualified source,          programs and the event is widely at-           law to the particular facts presented in
which is a person or entity that is regu-     tended.                                        the request and serves as precedent for
lated by, does business with, appears              If you receive the offer of a gift,       the determination of future cases.
before or negotiates with your agency;        you should consult with your agency                 Pursuant to the law, the Commis-
lobbies or has litigation adverse to your     ethics officer or other designated             sion is required to remove information
agency; applies for or receives funds         agency official to determine whether           identifying the person who requested
from your agency; or contracts with           it is permissible to accept it.                the opinion before making it public.

                                                                   5
             Have You Been "Certified Ethical"?
     Maybe you have not been “certi-         employment restrictions, and investiga-     ics Commission.
fied ethical,” but there is a place where    tions and penalties.                             Agencies that wish to incorporate
you can receive a certificate showing            A final review affords employees        the program into their own training
that you passed the Ethics Commission’s                                                  programs should contact the Commis-
on-line training program.                                                                sion. At least two agencies already are
     Available at www.goer.state.ny.us/                                                  in the process of using the course in just
train/onlinelearning, the program ex-                                                    such a manner.
plains New York’s ethics laws in easy-                                                        GOER and the Ethics Commission
to-understand language, with laws fol-                                                   previously teamed up to produce a 14-
lowed by a series of “real life” ex-                                                     minute ethics video, which can be or-
amples to test individuals’ understand-                                                  dered from the Commission by calling
ing.                                                                                     518-432-8210.
     However, while the examples illus-                                                       The video uses narrators and spe-
trate pertinent sections of the law, they                                                cific examples to illustrate what is ex-
are not meant to serve as legal advice.                                                  pected of State officers and employ-
Rather, they are designed to supple-                                                     ees. Subjects covered include outside
ment other training provided by the          an opportunity to test their knowledge      activities, honoraria and gifts.
Commission.                                  of the law. Individuals who complete             Designed for viewing by all State
     State employees can take the course     the review can print out a certificate of   employees, it may be used either as a
in one sitting or during several visits to   completion.                                 stand-alone piece or as part of an in-
the site. The program is divided into             The program was created by the         depth discussion of ethics and the law.
sections on conflicts of interest, outside   Governor’s Office of Employee Rela-         A facilitator’s guide is available to as-
activities, gifts, honoraria/travel, post-   tions, in conjunction with the State Eth-   sist managers with discussions.




New York State Ethics Commission
39 Columbia Street
Albany, NY 12207

								
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