Presenter’s Contact Information Howard L. Zwickel, Esq. Deputy Commissioner & Counsel Office of General Services Howard.zwickel@ogs.state.ny.us (518) 474-5988 Anne G. Phillips Associate Counsel Office of General Services anne.phillips@ogs.state.ny.us (518) 474-5607 Theresa Schillaci, Esq, Special Counsel Commission on Public Integrity theresa.schillaci@nyintegrity.org (518) 474-4539 OGS Website: www.ogs.state.ny.us Public Integrity Website: www.nyintegrity.org

Procurement Lobbying Questions Agenda Changes to Public Officers Law Gifts Conflicts of Interest Outside Employment Financial Disclosure Post Employment Restrictions Procurement Lobbying Questions

Public Officers Law Public Officers Law §73(5) Framework for determining whether a gift to a State officer or employee is permissible

Legislative Law Legislative Law §1-c(j) – What constitutes a gift? $75 rule is no longer in effect The new standard is nominal value gift may be: Money Service Loan Travel Lodging Meals Entertainment Discount Forbearance Promise

Legislative Law Legislative Law §1-m provides that lobbyist are prohibited from offering or giving a gift to any public official

Legislative Law Legislative Law §1-c(l) defines who is a public official for purposes of the prohibition on gifts

Public Officers Law Public Officers Law §74 sets forth a Code of Ethics for State officers and employees

Gifts Commission on Public Integrity – Advisory Opinion 08-01 updates prior opinions relative to gifts

Gifts What is a gift? What is nominal value? The Aggregation Rule Disqualified Source Impermissible Gifts to Third Parties

Gifts Exceptions: Complimentary attendance at Charitable or Political Events Complimentary Attendance at widely attended event Promotional items

Conflicts of Interest Public Officers Law §74 establishes the State Code of Ethics which prohibits conflicts of interest Potential conflicts of interest can arise in a number of different situations You have responsibilities as a public sector employee that differ from those of private sector employees

Conflicts of Interest General rule is that officers and employees of State government may not engage in activities that would create or appear to create a conflict with their public duties, nor raise suspicion among the public that they are likely to be engaged in acts that are in violation of their public trust

Conflicts of Interest Public Officers Law §74 sets out a series of standards to determine if there is a conflict of interest, including the concept of “appearance of impropriety”.

Potential Areas for Conflict of Interest Personal outside employment or investments Employment of, contracts to, or benefits for family members Release of confidential information Gifts

Outside Employment or Investments Public Officers Law §§73 & 74 Prohibits accepting other employment that will impair independence of judgment or require disclosure of confidential information Prohibits engaging in transactions with any business entity where employee has financial interest that can conflict with duties Must abstain from investments that may be directly related to the employee’s decisions or which otherwise create a substantial conflict with duties

Outside Employment or Investments Concept of “employment” is broadly defined Policies and forms on OGSNow Policy Manual There is no general prohibition against employees engaging in outside employment or compensated activity However, prior approval for such employment must be obtained from OGS and in some instances from the State Ethics Commission Violation of the laws and policy, as well as of the following guidelines may be grounds for disciplinary action

Employment of, Contracts to, or Benefits For Family Members or Others (Public Officers Law §74) POL standards prohibiting use of official position to secure unwarranted privileges for self or others Cannot give reasonable basis for appearance that employee is affected by kinship, rank, position or influence of any party or person Cannot raise suspicion among public that you are likely to be engaged in actions in violation of trust Cannot give reasonable basis for impression that any person can improperly influence you or unduly enjoy your favor in the performance of your official duties

Employment of Current State Employees Public Officers Law §73(4)(i) prohibits sales of goods or services greater than $25 to a State agency by a State employee or a firm where the employee has more than 10% stock unless there is a competitive bid. Important to make inquiry and document in the procurement record. Start with an easy part of the statute – direct prohibition, isn’t a lot of room for analysis. Seems to come up with specialized training provided by individuals employed at State academic institutions – even as adjunct professors. Good example of how the balancing of interests is met. Fairness to business community since a publicly bid transaction, fair to employee since not foreclosed from contracting and fair to the taxpayer since it ensures competition and eliminates that possible appearance of impropriety.

Release of Confidential Information (Public Officers Law §74) Code of Conduct has several prohibitions about release of confidential information Information confidential to the agency (information about the agency or decisions by the agency not otherwise known) Information confidential to the process Information obtained from a vendor either as part of the procurement process or as the result of the procurement

(Public Officers Law §§73(5) and 74) Gifts (Public Officers Law §§73(5) and 74) While some would argue that public employees “can’t be bought for a lunch”, it is an issue of perception, the appearance of impropriety or fairness. Look at it from the perspective of the other vendors and the general public and the message that it sends other agency employees. There are circumstances under which a state employee can accept a gift. Using the Nassau Health Care Corp. situation as an example, what message does this acceptance of gifts send. There were lots of meals, certain vendors appeared to have additional time with the people making the decisions about a multi-million dollar procurement. Other vendors may feel disadvantaged if they don’t similarly provide gifts. The message to agency employees – if my boss is spending this much time with the vendor, that means that vendor is favored or going to get the business. Changes or influences the perception. One of the most memorable quotes from this case “It’s not like I was going on golf trips; these were for legitimate business purposes”. Reconcile with the hockey game and lots of meals.

Public Officers Law §73-a Policy Makers or Financial Disclosure Public Officers Law §73-a Policy Makers or Salary Threshold: Over SG-24 Subject to certain exemptions File Annually by May 15 or within 30 Days of Joining State Service Financial Disclosure Statements currently available on-line at: http://www.nyintegrity.org/forms/ethics.html Serves as an additional check and balance. Certain employees are required to provide additional information about their outside activities and holdings. Public Officers Law section 73-a imposes the filing requirement on statewide elected officials; State officers and employees who either have been designated a policymaker by their appointing authority or who earn annual compensation at or above the job rate of Salary Grade 24, which is $70,851 this year; members or directors of public authorities; and others. More than 18,000 State employees file each year. The annual statement provides the Ethics Commission and the public with information about the activities and investments of filers which might indicate a conflict of interest or potential violation of the public trust. Fines: Civil Penalty of an amount up to $10,000. Categories of value of income, investments, gifts, etc., are deleted from public inspection of a statement. You can now file your financial disclosure statement electronically through the website listed above.

Post Employment Restrictions (Public Officers Law §73 (8)) Two-Year Bar on activities before employee’s former agency. Lifetime Bar on transactions that the employee worked on while in state service-agency is irrelevant. Government-to-Government Exceptions Solicitations or discussions of employment opportunities with an individual or entity that has a pending matter before the state employee is prohibited. Public Officers Law: Revolving Door Restrictions Two Year: May not appear before your former state agency or receive pay for services in a matter pending before your former agency for two years. Lifetime: May not appear before agency or receive pay in matters you personally worked on.

State Finance Law §§ 139-j and 139-k Procurement Lobbying State Finance Law restricts communications between the business community (offerers and the government about procurement contracts It recognizes there are different kinds of communications Communications that are an “attempt to influence” have specific rules (referred to as Contacts) The Law requires each Governmental Entity to develop a policy on permissible Contacts and to inform Offerers.

State Finance Law §§ 139-j and 139-k The policy tells business community where to direct advocacy efforts If an Offerer does not so limit Contacts, the Contacts are “impermissible Contacts” Violation of such rules has severe consequences – including public notice of non-responsibility, non-award of contract and debarment State Finance Law requires OGS conduct a review and investigation about the impermissible Contacts OGS is responsible for maintaining on the internet lists of businesses that have violated requirements

State Finance Law §§ 139-j and 139-k General Rule Offer can always contact Designated Contact Offerer cannot Contact other employees or governmental entities unless falls within one of the permissible subject matter (SFL §139-j(4)) For example, okay to file written protest or complaint with OSC, but not to otherwise Contact

State Finance Law §§ 139-j and 139-k Do’s Find out what a vendor wants to discuss before agreeing to talk Determine if there is a Restricted Period If there is a Restricted Period, determine who is the Designated Contact for that procurement and Direct communications correctly (namely to the Designated Contact) Follow the processes in the solicitation Generally request all questions be submitted in writing to the contracting officer listed in the solicitation

State Finance Law §§ 139-j and 139-k Do’s Develop agendas for any meetings that are conducted and stick with the agenda Create a record of Contact for every Contact – even if you are the Designated Contact or otherwise authorized under statute Send the record of Contact to the Designated Contact for inclusion in procurement record If not a Designated Contact, do refer for investigation all impermissible Contacts You don’t make decision: you are obligated to make a referral! Do cooperate with Legal Services in its investigation

State Finance Law §§ 139-j and 139-k Don’ts Don’t discuss procurements in a Restricted Period – it lasts until OSC approves the contract! Don’t miss opportunities for process improvements clearly identify when Restricted Period commences formalize information exchanges with business formalize procurement processes Don’t hesitate to call or e-mail Legal Services with any questions about the Law or if additional training is needed.

State Finance Law §§ 139-j and 139-k Resources Guidance developed by the Advisory Council on Procurement Lobbying, model forms and language and other materials, are present on the internet at http://www.ogs.state.ny.us/aboutOgs/regulations/defaultAdvisoryCouncil.html

OGS Policy on Permissible Contacts Access through OGSNow “Procurement Lobbying” at http://ogsnow/ogspolicy/viewpolicy.asp?policyID=169 Access through the public web site under “About OGS” at http://www.ogs.state.ny.us/aboutOgs/regulations/defaultSFL_139j-k.html Business Unit specific policies

Questions and Answers ?

Presenter’s Contact Information Howard L. Zwickel, Esq. Deputy Commissioner & Counsel Office of General Services Howard.zwickel@ogs.state.ny.us (518) 474-5988 Anne G. Phillips Associate Counsel Office of General Services anne.phillips@ogs.state.ny.us (518) 474-5607 Theresa Schillaci, Esq, Special Counsel Commission on Public Integrity theresa.schillaci@nyintegrity.org (518) 474-4539 OGS Website: www.ogs.state.ny.us Public Integrity Website: www.nyintegrity.org