Major General Vito J. Costellano

Attorney General of New York — Opinion
Dated: August 22, 1985

PUBLIC OFFICERS LAW, §§ 74(3)(a), (h).

Persons serving as full-time employees of the State in the field of emergency management, who also serve as part-time members of Federal disaster inspection teams, do not have a prohibited conflict of interest in the performance of their State jobs.

Major General Vito J. Costellano Chief of Staff to the Governor Division of Military and Naval Affairs

Your counsel has requested my opinion concerning the assessment of damages resulting from a disaster or emergency in New York State. According to counsel’s letter, whenever the president declares a disaster or emergency, Federal inspection teams prepare damage survey reports that describe the damage, propose repairs or replacements and estimate the cost of the work. It has been the practice of the Federal government to hire as part-time employees on these Federal disaster inspection teams employees of the State of New York working for agencies that deal with emergency management. Your counsel indicates that the Federal government hires these individuals to capitalize on their expertise in emergency management. We were informed that State inspection teams also assess the damages resulting from a disaster. The State employees serving as part-time employees on the Federal inspection teams do not, however, serve on the State teams with respect to a particular disaster. The State and Federal teams endeavor to reach a consensus as to damages, which forms the basis for the application for Federal disaster assistance funds. In the event of disagreement, the Federal estimate prevails for purposes of the application but the State may appeal. The question is whether any conflict of interest results when these State employees serve on the Federal disaster inspection teams.

Under section 74 of the Public Officers Law, no officer or employee of a State agency should accept other employment which will impair his independent judgment in the exercise of his official duties (Public Officers Law, § 74[3][a]). Officers and employees of State agencies should endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts in violation of their public trust (id., § 74[3][h]). Thus, officers and employees of State agencies must avoid even the appearance of impropriety.

Your counsel has not presented any facts indicating that service on these Federal inspection teams will have adverse effects on performance of State duties. The two jobs have the common purpose of combating emergencies in this State. While there may be differences in opinion as to damage estimates by the State and Federal inspection teams, the individuals under examination will only be making estimates as members of the Federal teams regarding a particular disaster. Thus, it does not appear that employment as members of Federal disaster inspection teams will impair the independent judgment of these employees in the exercise of their responsibilities as State employees (id., § 74[3][a]). Also, it is unlikely that the dual employment of these persons as State employees and as part-time Federal employees on disaster inspection teams will create the appearance of impropriety in relation to performance of State duties (id., § 74[3][h]). It is inappropriate for us to determine whether these individuals would be biased toward the State in their service as Federal employees. This is a question for determination by the employer, the Federal government. Your counsel notes in his letter that the Federal government is aware that these persons are also employed by the State and, in fact, has hired them to garner their expertise in emergency management.

We conclude that persons serving as full-time employees of the State in the field of emergency management, who also serve as part-time members of Federal disaster inspection teams, do not have a prohibited conflict of interest in the performance of their State jobs.