8/20/2015 1 … to CLE Fest 2006 Conflicts/Ch. 68 Training CLE Credits: 2 (ethics) … Alex...

04/19/23 1

… to CLE Fest 2006Conflicts/Ch. 68 TrainingCLE Credits: 2 (ethics)

…

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What Every What Every AttorneyAttorney

Should Know AboutShould Know AboutNew York CityNew York City

Conflicts of Interest Conflicts of Interest LawLaw

or…or…Alex Corrections

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……How to Beat the How to Beat the

Conflicts Blues!!Conflicts Blues!!

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YOUR “CONFLICTS OF YOUR “CONFLICTS OF INTEREST”INTEREST”

TOUR GUIDE WILL BE…TOUR GUIDE WILL BE…

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GROUP GROUP INTRO’sINTRO’s

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Training Hand-OutsTraining Hand-Outs Power Point print-out of this trainingPower Point print-out of this training ““What Every Attorney Should Know About What Every Attorney Should Know About

NYC Conflicts of Interest Law” (bound NYC Conflicts of Interest Law” (bound booklet)booklet) Chapter 68 of NYC Charter (the law)Chapter 68 of NYC Charter (the law) Rules of the Board (Conflicts of Interest Board of Rules of the Board (Conflicts of Interest Board of

the City of New York)the City of New York) Instructional Articles on Main Conflicts TopicsInstructional Articles on Main Conflicts Topics

(authored by COIB officials/staff)(authored by COIB officials/staff) ACS packet: excerpt from Personnel Manual ACS packet: excerpt from Personnel Manual

and ACS memos re Outside and ACS memos re Outside Employment/Law Practice)Employment/Law Practice)

HypotheticalsHypotheticalsAlex Corrections

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I. I. IntroductionIntroduction Conflict of Interest – Generally:Conflict of Interest – Generally:

Situation in which regard for one duty leads to disregard of Situation in which regard for one duty leads to disregard of anotheranother

Attorneys bound by Code of Professional ConductAttorneys bound by Code of Professional Conduct Law practice examples of conflict of interest…Law practice examples of conflict of interest…

Conflict of Interest – Ch.68, NYC Charter:Conflict of Interest – Ch.68, NYC Charter: New York City attorneys New York City attorneys alsoalso bound by Ch. 68, which bound by Ch. 68, which

governs conduct of City employeesgoverns conduct of City employees Applies toApplies to all all City employees of City employees of all all City agenciesCity agencies

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II. Chapter 68 ofII. Chapter 68 of the NYC Charterthe NYC Charter

City law which regulates conflicts between City law which regulates conflicts between your public duties and private interestsyour public duties and private interests

Sets higher standard than that of the private Sets higher standard than that of the private sectorsector

Sets minimum standard of conduct -- your Sets minimum standard of conduct -- your own agency may set higher standardsown agency may set higher standards

Provides for an independent City agency to Provides for an independent City agency to interpret and enforce: interpret and enforce: TheThe NYC Conflicts of Interest Board NYC Conflicts of Interest Board

(“COIB”)(“COIB”)Alex Corrections

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FUNCTION OF CHAPTER 68FUNCTION OF CHAPTER 68

These prohibitions on the conduct of These prohibitions on the conduct of public servants are enacted to:public servants are enacted to:

1. protect the trust placed in public 1. protect the trust placed in public servants of the City; servants of the City;

2. promote public confidence in 2. promote public confidence in governmentgovernment

3. preserve the integrity of government-3. preserve the integrity of government-decision making; anddecision making; and

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PREAMBLE to Ch. 68PREAMBLE to Ch. 68

§2600 §2600 PreamblePreamble. Public service is a . Public service is a public trust. These prohibitions on public trust. These prohibitions on the conduct of public servants are the conduct of public servants are enacted to preserve the trust enacted to preserve the trust placed in public servants of the placed in public servants of the city, to promote public confidence city, to promote public confidence in government, to protect the in government, to protect the integrity of government decision-integrity of government decision-making and to enhance government making and to enhance government efficiency.efficiency. Alex Corrections

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III. WHY DO III. WHY DO II CARE CAREABOUT CHAPTER 68?ABOUT CHAPTER 68?

Because you are an upstanding public Because you are an upstanding public servantservant

Because you wish to avoid unwitting Because you wish to avoid unwitting violations of Ch. 68, which may result inviolations of Ch. 68, which may result in

- ACS disciplinary proceedings; and/or- ACS disciplinary proceedings; and/or- Conflicts of Interest Board disciplinary - Conflicts of Interest Board disciplinary proceedings: proceedings:

civil penalties of up to $10,000civil penalties of up to $10,000 criminal charges/proceedings (misdemeanor)criminal charges/proceedings (misdemeanor)

Because you Because you wantwant those 2 CLE ethics those 2 CLE ethics credits!!credits!!

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IV.IV. WHAT IS A WHAT IS A WAIVER?WAIVER?

COIB sometimes authorizes an outside activity/job which may be prohibited by the letter of the law, but not the spirit of the law

The granting of a waiver upholds the spirit of the conflicts of interest laws

Job/activity must be in furtherance of the purposes and interests of the City

Requires ACS Commissioner approval To seek waiver or waiver consult, contact

ACS Legal Counsel Unit (can also contact COIB w/ option to remain anonymous)

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V. V. PrimaryPrimary Topics addressed Topics addressed by by

Ch. 68 & the Conflicts Ch. 68 & the Conflicts BoardBoard

A.A. Gifts & HonorariaGifts & Honoraria

B.B. Misuse of City OfficeMisuse of City Office

C.C. Outside ActivitiesOutside Activities

D.D. Post-Employment RestrictionsPost-Employment Restrictions

E.E. Political ActivitiesPolitical Activities

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A.A. Gifts & HonorariaGifts & Honoraria (Booklet pp. 49-58)(Booklet pp. 49-58)

Conflict of interest may arise where public Conflict of interest may arise where public servant receives item of value from private servant receives item of value from private individual or entity doing biz with Cityindividual or entity doing biz with City

Guidelines established to assist public Guidelines established to assist public servants in identifying which gifts and servants in identifying which gifts and honoraria may be acceptedhonoraria may be accepted

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A. Gifts (cont.)A. Gifts (cont.)

CCharter harter §2604(b)(5) &§2604(b)(5) &COIB’s “Valuable Gift Rule”COIB’s “Valuable Gift Rule” No public servant shall accept any “valuable No public servant shall accept any “valuable

gift” from person/firm the public servant gift” from person/firm the public servant knows is engaged in business dealings with knows is engaged in business dealings with the City…the City………exceptexcept gifts which are customary on family gifts which are customary on family

or social occasions.or social occasions.““valuable giftvaluable gift” – defined as any gift, in any ” – defined as any gift, in any

form, with value of $50 or moreform, with value of $50 or more- Cummulative within 12 month period; - Cummulative within 12 month period; e.g. two $25 gifts in a year = “valuable e.g. two $25 gifts in a year = “valuable gift”gift”

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Gifts that Conflict w/ Official Gifts that Conflict w/ Official DutiesDuties

In addition to above gift provision, other provisions also In addition to above gift provision, other provisions also regulate gift acceptance and gift solicitation…regulate gift acceptance and gift solicitation…

……eveneven if less than $50 and/or giver/donor has no if less than $50 and/or giver/donor has no City biz dealingsCity biz dealings

§2604(b)(§2604(b)(2)2) - public servant shall not engage in any - public servant shall not engage in any business, transaction or private employment, or have business, transaction or private employment, or have any financial or other private interest, direct or any financial or other private interest, direct or indirect, which is indirect, which is in conflict with the proper in conflict with the proper discharge of official duties discharge of official duties (“catch-all”)(“catch-all”)

§2604(b)(§2604(b)(3)3) - public servant shall not use or attempt - public servant shall not use or attempt to to use positionuse position to obtain financial gain, privilege, to obtain financial gain, privilege, etc., for public servant or person or firm associated etc., for public servant or person or firm associated with public servantwith public servant

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A.A. Gifts (cont.)Gifts (cont.)

Permitted GiftsPermitted GiftsSubject to Subject to §§2604(b)(2) and (b)(3) above, §§2604(b)(2) and (b)(3) above,

okay to okay to accept gifts from persons or firms accept gifts from persons or firms doing biz with doing biz with City in some circumstances:City in some circumstances:

1. 1. Family & Social OccasionsFamily & Social Occasions Reason for gift must be family/personal Reason for gift must be family/personal

relationship, and NOT the biz dealingsrelationship, and NOT the biz dealings Receipt of gift would not result in Receipt of gift would not result in appearanceappearance of of

conflictconflict e.g., must not appear to be using one’s office e.g., must not appear to be using one’s office

for personal/private gain, or giving preferential for personal/private gain, or giving preferential treatment to particular person/entity treatment to particular person/entity

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Permitted Gifts (cont.)Permitted Gifts (cont.)2.2. Awards & PlaquesAwards & Plaques – of no substantial resale – of no substantial resale

valuevalue

3.3. Meals & RefreshmentsMeals & Refreshments – generally okay in – generally okay in course of City biz wherecourse of City biz where

a.a. the spread is not lavish; and/orthe spread is not lavish; and/orb.b. it would be impractical to decline (e.g., it would be impractical to decline (e.g.,

no other place/time to eat elsewhere; all no other place/time to eat elsewhere; all other participants are partaking and other participants are partaking and continuing biz)continuing biz)

4.4. Invitations to Attend at Functions/Annual Invitations to Attend at Functions/Annual EventsEvents

- sometimes ok, depends on many variables- sometimes ok, depends on many variables

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Permitted Gifts (cont.)Permitted Gifts (cont.)5.5. Payment for Travel Related ExpensesPayment for Travel Related Expenses

-may be acceptable “gift to City” if for -may be acceptable “gift to City” if for City purpose, not lavish, not longer City purpose, not lavish, not longer than necessary to carry out City biz, than necessary to carry out City biz, and approved by agency and approved by agency

6.6. Gifts to City for City PurposeGifts to City for City Purpose-gifts from private entities doing biz -gifts from private entities doing biz

with City may be okay if for City with City may be okay if for City purpose, subject to restrictionspurpose, subject to restrictions

-must adhere to -must adhere to solicitation/fundraising guidelinessolicitation/fundraising guidelines

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Compensation/GratuitiesCompensation/GratuitiesFrom Non-City Sources From Non-City Sources

Charter Charter §2604(b)(13)§2604(b)(13) – no public servant – no public servant shall receive compensation, except from shall receive compensation, except from the City, for performing any official duty the City, for performing any official duty oror accept or receive any gratuity from any accept or receive any gratuity from any person whose interests may be affected by person whose interests may be affected by the public servant’s official actionsthe public servant’s official actions

Translation: No tips, gratuities or gifts for Translation: No tips, gratuities or gifts for doing what the City already pays you to do!doing what the City already pays you to do!

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Honoraria GuidelinesHonoraria Guidelines Okay to accept honoraria and/or expenses, Okay to accept honoraria and/or expenses,

subject to following guidelines:subject to following guidelines: Cannot accept honorarium/expenses for an Cannot accept honorarium/expenses for an

engagement before a group if it might engagement before a group if it might appear that the group (or a member) might appear that the group (or a member) might receive favorable treatment from the Cityreceive favorable treatment from the City

Amount must be reasonably related to Amount must be reasonably related to services renderedservices rendered

City managersCity managers’ paid speaking ’ paid speaking engagements must be limited in quantity engagements must be limited in quantity to avoid appearance of neglecting public to avoid appearance of neglecting public dutiesduties

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A. Gifts A. Gifts

Honoraria Guidelines Honoraria Guidelines (cont.)(cont.)

Amount received must not exceed 20% of annual Amount received must not exceed 20% of annual salarysalary

May not accept honoraria for speeches or May not accept honoraria for speeches or appearances made as part of official dutiesappearances made as part of official duties

e.g.,e.g., must decline honorarium if speech is related to must decline honorarium if speech is related to operations of own agency (remember, you can’t be operations of own agency (remember, you can’t be paid by non-City source for doing your job)paid by non-City source for doing your job)

May accept payment, on behalf of City, for reasonable May accept payment, on behalf of City, for reasonable and necessary expensesand necessary expenses

requires Commissioner approval (contact Legal requires Commissioner approval (contact Legal Counsel if unsure of proprietary of specific paymentCounsel if unsure of proprietary of specific payment

ExceptionsExceptions: teaching/lecturing (: teaching/lecturing (seesee “Outside Activities”) “Outside Activities”)

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A.A. Gifts (cont.)Gifts (cont.)

Office Office Collections/SolicitationsCollections/Solicitations

Office Collections for gifts, social occasions, Office Collections for gifts, social occasions, fundraisers, etc., should be carried out with caution:fundraisers, etc., should be carried out with caution: Collection efforts should be unobtrusive, Collection efforts should be unobtrusive, i.e., i.e., no one-no one-

on-one soliciting; no pressure on nonparticipantson-one soliciting; no pressure on nonparticipants Superiors MAY NOT solicit subordinatesSuperiors MAY NOT solicit subordinates Subordinates may solicit superiors ($25 max)Subordinates may solicit superiors ($25 max) COIB Rule of Thumb:COIB Rule of Thumb:

IT SHOULD BE AN OPPORTUNITY -- IT SHOULD BE AN OPPORTUNITY --

NOT A NECESSITY!!NOT A NECESSITY!! May contact Legal Counsel Unit or COIB for consultMay contact Legal Counsel Unit or COIB for consult

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Additional Gift RulesAdditional Gift Rules City agencies may have stricter rules than City agencies may have stricter rules than

the Charter, but may not have more lenient the Charter, but may not have more lenient rules than the Charter rules than the Charter

Nothing in the Board’s “Valuable Gift Rule” Nothing in the Board’s “Valuable Gift Rule” authorizes violation of any applicable authorizes violation of any applicable federal, state, or local law, rule or federal, state, or local law, rule or regulation regulation e.g.e.g., a stricter rule issued by the Mayor’s office, , a stricter rule issued by the Mayor’s office,

Mayoral Executive Order Number 16 – bribes Mayoral Executive Order Number 16 – bribes must be reported; though you might not must be reported; though you might not otherwise be required to report it under Ch. 68otherwise be required to report it under Ch. 68

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B.B. Misuse of CityMisuse of CityOffice/ResourcesOffice/Resources

Public servants may not use their City Public servants may not use their City office/position to gain advantage for office/position to gain advantage for themselves, immediate family or themselves, immediate family or associatesassociates

Duty of undivided loyalty to CityDuty of undivided loyalty to City May not use City time, letterhead, May not use City time, letterhead,

personnel, equipment, resources or personnel, equipment, resources or supplies for non-City purposessupplies for non-City purposes

May not induce/cause other public May not induce/cause other public servants to violate ethics/conflicts lawsservants to violate ethics/conflicts laws

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B. Misuse of Office/Resources (cont.)B. Misuse of Office/Resources (cont.)

Use of City Office for Use of City Office for Personal GainPersonal Gain

Charter Charter §2604(b)(3)§2604(b)(3) - public servants - public servants may not use or attempt to use City may not use or attempt to use City position for financial gain, contract, position for financial gain, contract, license, privilege, or other private or license, privilege, or other private or personal advantage, direct or indirect, personal advantage, direct or indirect, for themselves or any person or firm for themselves or any person or firm with whom they are “associated”with whom they are “associated”

e.g., e.g., political campaigning, running side biz, political campaigning, running side biz, etc., using City time, resources and etc., using City time, resources and equipmentequipment

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B. Misuse of Office (cont.)B. Misuse of Office (cont.)

Use of City Office for Personal Use of City Office for Personal GainGain (cont.) (cont.)

““associated”- (appears in §2604(b)(3)associated”- (appears in §2604(b)(3)- spouse, domestic partner, child, parent, or spouse, domestic partner, child, parent, or

sibling;sibling;- person w/whom public servant has biz/financial person w/whom public servant has biz/financial

relationship withrelationship with- firm in which public servant has present or firm in which public servant has present or

potential “interest” inpotential “interest” in

““interest” –interest” – (appears in (appears in §2604(b)(2) [‘catch all”])§2604(b)(2) [‘catch all”])a) ownership interest of public servant, spouse or a) ownership interest of public servant, spouse or unemancipated child of 5% or $40,000; orunemancipated child of 5% or $40,000; orb) position as employee, consultant, officer, b) position as employee, consultant, officer, director, trustee, attorney, agent, broker or director, trustee, attorney, agent, broker or managermanager

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C. C. Outside ActivitiesOutside Activities

Activities include moonlighting, volunteering, Activities include moonlighting, volunteering, ownership interestsownership interests

Charter laws and COIB guidelines apply both Charter laws and COIB guidelines apply both to paid and unpaid activities, albeit differently to paid and unpaid activities, albeit differently in some cases.in some cases.

Your agency may impose stricter guidelinesYour agency may impose stricter guidelines ACS does!ACS does!

Must notify ACS (Legal Counsel Unit) of all Must notify ACS (Legal Counsel Unit) of all outside volunteer or employment activityoutside volunteer or employment activity

““conflicts of interest” assessment will be conflicts of interest” assessment will be conductedconducted

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C. Outside Activities (cont.)C. Outside Activities (cont.)

GENERAL PROVISIONSGENERAL PROVISIONS

§2604(b)(2)§2604(b)(2) - (“catch-all”) – don’t do - (“catch-all”) – don’t do anything that conflicts with your anything that conflicts with your official dutiesofficial duties

§2604(b)(3) §2604(b)(3) – (“misuse of office”) – – (“misuse of office”) – don’t exploit your City position, or don’t exploit your City position, or use City time/resources, for use City time/resources, for personal/private gainpersonal/private gain

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GENERAL PROVISIONS (cont.)GENERAL PROVISIONS (cont.)

A “misuse of office” violation could A “misuse of office” violation could occur where public servant was occur where public servant was involved with outside employer’s involved with outside employer’s City dealings/bizCity dealings/biz

i.ei.e., gives appearance of public servant ., gives appearance of public servant seeking private advantage for an entity seeking private advantage for an entity with whom he/she is “associated”with whom he/she is “associated”

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GENERAL PROVISIONS (cont.)GENERAL PROVISIONS (cont.)

§2604(b)(6)§2604(b)(6) – public servants prohibited from – public servants prohibited from “representing” private interests for “representing” private interests for compensation before compensation before anyany City agency or from City agency or from “appearing” anywhere, directly or indirectly, on “appearing” anywhere, directly or indirectly, on behalf of private interests in matters involving behalf of private interests in matters involving the Citythe City.. ““AppearAppear” §2601(4) defines as ” §2601(4) defines as anyany communication for communication for

compensation, other than re “ministerial” compensation, other than re “ministerial” (nondiscretionary) matters.(nondiscretionary) matters.

““Represent”Represent” – COIB defines as acting as – COIB defines as acting as representative of someone to bring issues before a representative of someone to bring issues before a City agencyCity agency

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C.C. Outside Activities (cont.)Outside Activities (cont.)

No Biz Dealings With CityNo Biz Dealings With City

1.1. MoonlightingMoonlighting – okay to work for – okay to work for person/firm with person/firm with nono City biz, subject to City biz, subject to above charter provisionsabove charter provisions

2.2. Ownership InterestsOwnership Interests – okay to possess – okay to possess ownership interest in firm with ownership interest in firm with nono City biz, City biz, subject to above charter provisionssubject to above charter provisions

3.3. Volunteer ActivitiesVolunteer Activities – okay to volunteer for – okay to volunteer for not-for-profits with not-for-profits with nono City biz, subject to City biz, subject to above charter provisionsabove charter provisions

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C. C. Outside Activities (cont.)Outside Activities (cont.)

BIZ DEALINGS WITH CITYBIZ DEALINGS WITH CITYMoonlighting – Regular EmployeesMoonlighting – Regular Employees

§§2601(12) & 2604(a)(1)(b)§§2601(12) & 2604(a)(1)(b) - no full-time public - no full-time public servant may have a position with a “firm” servant may have a position with a “firm” that public servant knows or should know is that public servant knows or should know is engaged in biz dealings w/ engaged in biz dealings w/ any any City agency City agency

““firm”firm” – §2601(11) defines as sole – §2601(11) defines as sole proprietorship, joint venture, partnership, proprietorship, joint venture, partnership, corp. or any other form of enterprise, but corp. or any other form of enterprise, but shall not include public benefit corp., local shall not include public benefit corp., local development corp. or other similar entitydevelopment corp. or other similar entity

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BIZ DEALINGS WITH CITY (cont.)BIZ DEALINGS WITH CITY (cont.)

Ownership Interests for Regular EmployeesOwnership Interests for Regular Employees

§2604(a)(1)(b)§2604(a)(1)(b) – no f/t public servant may have – no f/t public servant may have “ownership interest” in “firm” that does biz “ownership interest” in “firm” that does biz with with anyany City agency City agency

““ownership interest”ownership interest” - interest in firm held by - interest in firm held by public servant, spouse, domestic partner or public servant, spouse, domestic partner or unemancipated child, which exceeds 5% of unemancipated child, which exceeds 5% of the firm or an investment of $40,000, the firm or an investment of $40,000, whichever is less…whichever is less…

*Rule does not apply to publicly traded companies, *Rule does not apply to publicly traded companies, except for those that do biz with public servant’s except for those that do biz with public servant’s ownown agency agency

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C. Outside Activities (cont.)C. Outside Activities (cont.)BIZ DEALINGS WITH CITY (cont.)BIZ DEALINGS WITH CITY (cont.)

VolunteeringVolunteering for Not-For-Profits w/ City Biz for Not-For-Profits w/ City Biz

§2604(c)(6)§2604(c)(6) - public servant may volunteer - public servant may volunteer (unpaid)(unpaid) as an attorney, agent, broker, as an attorney, agent, broker, employee, officer, director or consultant for any employee, officer, director or consultant for any not-for-profit entity, subject to certain not-for-profit entity, subject to certain conditions:conditions:

- must recuse self from not-for-profit’s City biz- must recuse self from not-for-profit’s City biz

- - ownown agency must not have City biz w/ not-for- agency must not have City biz w/ not-for-profit, unless ACS Commissioner determines profit, unless ACS Commissioner determines proposed volunteer activity is in furtherance of proposed volunteer activity is in furtherance of the purposes and interests of the City (no COIB the purposes and interests of the City (no COIB approval nec’y)approval nec’y)

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C. Outside Activities (cont.)C. Outside Activities (cont.)BIZ DEALINGS WITH CITY (cont.)BIZ DEALINGS WITH CITY (cont.)

VolunteeringVolunteering for Not-For-Profits w/ City Biz (cont.) for Not-For-Profits w/ City Biz (cont.)

- exception: do not need Commissioner approval - exception: do not need Commissioner approval if volunteer work at not-for-profit does not if volunteer work at not-for-profit does not involve policy-making or administrative involve policy-making or administrative authority (COIB Advisory Opinion No. 98-8)authority (COIB Advisory Opinion No. 98-8)e.g.,e.g., okay to serve food in soup kitchen w/out okay to serve food in soup kitchen w/out approvalapproval

Double recusal appliesDouble recusal applies: may have no City : may have no City dealings at not-for-profit position; may have no dealings at not-for-profit position; may have no not-for-profit dealings at ACS/City job.not-for-profit dealings at ACS/City job.

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Waivers for Moonlighting & Waivers for Moonlighting & VolunteeringVolunteering

§2604(e)§2604(e) – public servant may hold an otherwise – public servant may hold an otherwise prohibited position upon Commissioner’s written prohibited position upon Commissioner’s written approval, approval, andand determination by COIB (i.e., determination by COIB (i.e., waiver) that position would not conflict with waiver) that position would not conflict with purposes and interests of the Citypurposes and interests of the City

- COIB considers various factors, including hours, - COIB considers various factors, including hours, compensation, and any possible relationship compensation, and any possible relationship between official duties and outside activitiesbetween official duties and outside activities

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Waivers for Moonlighting & Waivers for Moonlighting & Volunteering (cont.)Volunteering (cont.)- Upon obtaining waiver, public servant Upon obtaining waiver, public servant

may accept position w/ firmmay accept position w/ firm- Still bound by standard restrictions re Still bound by standard restrictions re

outside workoutside work - cannot use City time and resources for non-- cannot use City time and resources for non-

City purposeCity purpose - cannot release confidential information - cannot release confidential information

obtained in course of City employmentobtained in course of City employment- Waivers usually include add’l restrictionsWaivers usually include add’l restrictions

- e.g., two-way recusale.g., two-way recusal

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Waivers for Moonlighting & Waivers for Moonlighting & Volunteering (cont.)Volunteering (cont.)

Teaching WaiversTeaching Waivers - - Many public servants have been granted Many public servants have been granted

waivers to hold p/t and adjunct teaching positions waivers to hold p/t and adjunct teaching positions

may not be paid to teach that which constitutes may not be paid to teach that which constitutes your official duties (your official duties (i.e.i.e., can’t be paid to teach , can’t be paid to teach your job)your job)

- This is an area of some contention; - This is an area of some contention; determinations often difficult; call Legal determinations often difficult; call Legal Counsel and/or COIB re your particular Counsel and/or COIB re your particular situation!!situation!!

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Teaching WaiversTeaching Waivers (cont.) (cont.)

Almost all colleges within NYC conduct Almost all colleges within NYC conduct some biz with the City – therefore, waiver some biz with the City – therefore, waiver requiredrequired

Exception: CUNY/SUNY schools do not Exception: CUNY/SUNY schools do not require waiver because 1) these require waiver because 1) these government institutions are not “firms” government institutions are not “firms” as defined in §2601(11) and 2)as defined in §2601(11) and 2)

C. Outside Activities (cont.)C. Outside Activities (cont.)Waivers for Moonlighting & Waivers for Moonlighting & Volunteering (cont.)Volunteering (cont.)

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C. Outside Activities (cont.)C. Outside Activities (cont.)SPECIAL SITUATIONS SPECIAL SITUATIONS

Private Practice of LawPrivate Practice of Law§2604(b)(§2604(b)(7) - No public servant may appear 7) - No public servant may appear as an as an attorney or as counsel against the attorney or as counsel against the interests of the Cityinterests of the City in any litigation in in any litigation in which the City is a party, or in any action or which the City is a party, or in any action or proceeding in which the City, or any public proceeding in which the City, or any public servant of the City, acting in the course of servant of the City, acting in the course of official duties, is a complainant.official duties, is a complainant.

Your agency may impose stricter policyYour agency may impose stricter policy ACS does! ACS does!

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C. Outside Activities (cont.)C. Outside Activities (cont.)SPECIAL SITUATIONS (cont.)SPECIAL SITUATIONS (cont.)

Private Practice of Law (cont.)Private Practice of Law (cont.)

ACS PolicyACS Policy - - per ACS Memo, “Policy on Outside per ACS Memo, “Policy on Outside Practice” (10/7/98) (copy in hand-out)Practice” (10/7/98) (copy in hand-out)- may not engage in private practice of law - may not engage in private practice of law without written approval of the General Counselwithout written approval of the General Counsel- applies regardless whether paid or unpaid- applies regardless whether paid or unpaid- rarely granted; mainly for one-time transaction - rarely granted; mainly for one-time transaction for relativefor relative- may not use City time or resources- may not use City time or resources- some - some pro bono pro bono work may be approved if no work may be approved if no conflict and does not involve use of City conflict and does not involve use of City time/resources.time/resources.

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Financial Relationships – Financial Relationships – Superiors/SubordinatesSuperiors/Subordinates

§2604(b)(14)§2604(b)(14) – No public servant shall enter – No public servant shall enter in any business or financial relationship w/ in any business or financial relationship w/ another public servant who is a superior or another public servant who is a superior or subordinate of such public servantsubordinate of such public servant

e.g., e.g., joint biz ventures, borrowing money,joint biz ventures, borrowing money,

landlord/tenant, cohabitation(?!?!)landlord/tenant, cohabitation(?!?!)

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SPECIAL SITUATIONS (cont.)SPECIAL SITUATIONS (cont.)

Expert Testimony (cont.)Expert Testimony (cont.)

§2604(b)(8)§2604(b)(8) – prohibits public servant – prohibits public servant from giving opinion evidence as paid from giving opinion evidence as paid expert against interests of the City in expert against interests of the City in civil litigation brought by or against civil litigation brought by or against the City.the City. Rules differ re p/t City employeesRules differ re p/t City employees

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Independent Contracting & Other Freelance Independent Contracting & Other Freelance WorkWork

- Generally okay as long as no City time/resources Generally okay as long as no City time/resources usedused

- If “ongoing relationship” with client firm which If “ongoing relationship” with client firm which does biz w/ City, COIB waiver neededdoes biz w/ City, COIB waiver needed

- May not use City position to obtain clients May not use City position to obtain clients (misuse of office, §2604[b][3])(misuse of office, §2604[b][3])

- May not provide services to City subordinate or May not provide services to City subordinate or superior (financial relationships between sub’s superior (financial relationships between sub’s and sup’s is prohibited, §2604[b][14])and sup’s is prohibited, §2604[b][14])

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Fundraising for Not-For-ProfitsFundraising for Not-For-Profits- Generally okayGenerally okay

- May not use City time and resources*May not use City time and resources*- May not use City position to assist fundraising May not use City position to assist fundraising

efforts*efforts*

* Some exceptions where authorization obtained * Some exceptions where authorization obtained b/c efforts in furtherance and purposes of Cityb/c efforts in furtherance and purposes of City

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C.C. Outside Activities (cont.)Outside Activities (cont.)

Consult COIB (www.nyc.gov/ethics) for Consult COIB (www.nyc.gov/ethics) for specific guidelines re:specific guidelines re:- Outside employment of Outside employment of p/t p/t public servantspublic servants- Ownership interests of Ownership interests of p/tp/t public servants public servants- COIB “orders” allowing ownership COIB “orders” allowing ownership

interestsinterests- Ownership interests in coops and condosOwnership interests in coops and condos- Temporary EmploymentTemporary Employment- Outside employment as architects, Outside employment as architects,

engineers, electricians, plumbers, engineers, electricians, plumbers, planners, etc. (subject to City inspection)planners, etc. (subject to City inspection)

- City-related outside employmentCity-related outside employment

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D. Post-D. Post-Employment Employment RestrictionsRestrictions(booklet pp. 87-99)(booklet pp. 87-99)

Applicable to all City employees (regardless of Applicable to all City employees (regardless of responsibility/discretion) who leave City for responsibility/discretion) who leave City for private sectorprivate sector

Purpose of restrictions to prevent:Purpose of restrictions to prevent: former public servants from exploiting public former public servants from exploiting public

office for personal gain;office for personal gain; subordinating City interests to those of subordinating City interests to those of

prospective employer; orprospective employer; or exerting undue influence on government exerting undue influence on government

decision-making.decision-making.Alex Corrections

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• Post-Employment (cont.)Post-Employment (cont.)4 Main Post-Employment 4 Main Post-Employment

Restrictions:Restrictions:Public Servants (current/former) may Public Servants (current/former) may notnot:: Negotiate for job w/ private employer who is Negotiate for job w/ private employer who is

involved w/ particular matter public servant is involved w/ particular matter public servant is working on in City jobworking on in City job

Appear before one’s former City agency within Appear before one’s former City agency within one year after leaving City service (“one-year one year after leaving City service (“one-year appearance ban”) appearance ban”)

Work on a particular matter that public servant Work on a particular matter that public servant worked on personally and substantially as a City worked on personally and substantially as a City employee (“lifetime particular matter ban”)employee (“lifetime particular matter ban”)

Use or disclose confidential info gained in City Use or disclose confidential info gained in City service.service.

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D. Post-Employment (cont.)D. Post-Employment (cont.)

1. 1. Negotiating/Applying for Private Negotiating/Applying for Private Sector JobSector Job§2604(d)(1)§2604(d)(1) – prohibits soliciting, negotiating for, – prohibits soliciting, negotiating for, or accepting positionor accepting position

(a) that you would be prohibited from holding (a) that you would be prohibited from holding after leaving City service as per Charter’s post-after leaving City service as per Charter’s post-employment provisions, oremployment provisions, or

(b) with any person/firm involved in “particular (b) with any person/firm involved in “particular matter” w/ City while you are involved in such matter” w/ City while you are involved in such mattermatter

- “particular matter” – basically means any - “particular matter” – basically means any matter, case, project, etc., but varies according to matter, case, project, etc., but varies according to specific facts, including the nature of the matter specific facts, including the nature of the matter and the nature of your involvement.and the nature of your involvement.

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2. 2. One-Year Appearance BanOne-Year Appearance Ban§2604(d)(2)§2604(d)(2) – applies to most public – applies to most public servants; prohibits public servants servants; prohibits public servants from “appearing” before one’s own from “appearing” before one’s own City agency for City agency for one-year one-year following following City resignationCity resignation

““appear”appear” = any communication for = any communication for compensation, other than ministerial; i.e., no compensation, other than ministerial; i.e., no face-to-face, no email, no letter, no phone face-to-face, no email, no letter, no phone call, etc., to your old agency!call, etc., to your old agency!

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One-Year Appearance Ban (cont.)One-Year Appearance Ban (cont.)

““Litigation Exception”Litigation Exception”§2604(d)(2)§2604(d)(2) creates an exception to creates an exception to one-year appearance ban:one-year appearance ban:

- former public servant may appear - former public servant may appear before former agency in before former agency in adjudicative adjudicative proceedingproceeding during 12-month period during 12-month period following City resignation, following City resignation, unless such unless such proceeding was pending in agency proceeding was pending in agency during City serviceduring City service

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One-Year Appearance Ban (cont.)One-Year Appearance Ban (cont.)

““Litigation Exception” (cont.)Litigation Exception” (cont.) Beware - some types of administrative Beware - some types of administrative

hearings are deemed not “adjudicatory”hearings are deemed not “adjudicatory”e.g.e.g., OATH hearings (Office of Admin. Trials , OATH hearings (Office of Admin. Trials & Hearings); nonbinding arbitration& Hearings); nonbinding arbitration

““Litigation Exception” applies mainly Litigation Exception” applies mainly to lawyers but can apply to to lawyers but can apply to nonlawyers, as wellnonlawyers, as well

e.g.,e.g., expert witness expert witnessAlex Corrections

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3. 3. Lifetime Particular Matter BanLifetime Particular Matter Ban §2604(d)(4)§2604(d)(4) – permanently barred from – permanently barred from involvement in any “particular matter” involvement in any “particular matter” handled “personally and substantially” as a handled “personally and substantially” as a public servantpublic servant-- “personally and substantially” and -- “personally and substantially” and “particular matter” are much interpreted by “particular matter” are much interpreted by COIB; interpreted narrowly so as not to COIB; interpreted narrowly so as not to inhibit private sector prospects (as this would inhibit private sector prospects (as this would deter City service)deter City service)-- however, simple interpretation applies to -- however, simple interpretation applies to most ACS attorneys: most ACS attorneys: No involvement ever on No involvement ever on any case pending during your City services any case pending during your City services (whether assigned to you or not)(whether assigned to you or not)

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4.4. Confidential Info Gained in City ServiceConfidential Info Gained in City Service

§2604(d)(5)-§2604(d)(5)- no public servant shall, after no public servant shall, after leaving city service, disclose or use for leaving city service, disclose or use for private advantage any confidential info private advantage any confidential info gained from public service which is not gained from public service which is not otherwise made available to publicotherwise made available to public

this shall not prohibit disclosure of any this shall not prohibit disclosure of any conduct which public servant knows or conduct which public servant knows or reasonably believes to involve waste, reasonably believes to involve waste, inefficiency, corruption, criminal inefficiency, corruption, criminal activity or conflict of interestactivity or conflict of interest..Alex Corrections

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4.4. Confidential Info Gained in City Confidential Info Gained in City Service (cont.)Service (cont.)

This restriction should not be interpreted to This restriction should not be interpreted to prohibit use of your prohibit use of your general general knowledge and knowledge and expertise gained in City serviceexpertise gained in City service

The purpose of this restriction is not to prevent The purpose of this restriction is not to prevent you from attaining expertise and applying it to you from attaining expertise and applying it to the outside world; rather it is to protect the outside world; rather it is to protect confidentiality imposed upon ACS by lawconfidentiality imposed upon ACS by law

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Okay to work for firm that has/had dealings Okay to work for firm that has/had dealings w/ your agency, including a project/case you w/ your agency, including a project/case you handled – you just need to conform w/ above handled – you just need to conform w/ above rulesrules

““Government-to-Government Exception” – if Government-to-Government Exception” – if your post-City employment is w/ another your post-City employment is w/ another entity of local, state or federal government, entity of local, state or federal government, Charter provisions do not applyCharter provisions do not apply

Do consult w/ ACS Legal Counsel Unit or Do consult w/ ACS Legal Counsel Unit or COIB (can be anonymous) re prospective COIB (can be anonymous) re prospective post-employment to avoid Charter violations post-employment to avoid Charter violations which may not be obviouswhich may not be obvious

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SPECIAL SITUATIONSSPECIAL SITUATIONS

18B Panel Practice18B Panel Practice Generally permissible - does not violate “one-year Generally permissible - does not violate “one-year

appearance ban” b/c of “litigation exception” appearance ban” b/c of “litigation exception” applicable to adjudicatory hearings (so no waiver applicable to adjudicatory hearings (so no waiver needed)needed)

Other restrictions do applyOther restrictions do apply, so proceed w/ caution!, so proceed w/ caution! ““Lifetime Particular Matter Bar” - cannot ever work on any Lifetime Particular Matter Bar” - cannot ever work on any

case you dealt with during City employment and/or that was case you dealt with during City employment and/or that was pending during your City service (regardless of whether you pending during your City service (regardless of whether you handled it)handled it)

It is It is youryour duty to find out necessary details for determination duty to find out necessary details for determination Cannot use/disclose confidential information obtained during Cannot use/disclose confidential information obtained during

City employmentCity employment

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E. Political ActivitiesE. Political Activities Public servants may not permit personal Public servants may not permit personal

partisan affiliations to influence partisan affiliations to influence discharge of their official dutiesdischarge of their official duties

Restrictions on political activities Restrictions on political activities covered by Charter §§2604(b) thru (b)covered by Charter §§2604(b) thru (b)(12)(12)

Purpose to prevent pressure on Purpose to prevent pressure on employees, protect integrity of City employees, protect integrity of City government and prevent patronagegovernment and prevent patronage

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E. Political ActivitiesE. Political Activities Public servants may engage in political activities Public servants may engage in political activities

as long as Chapter 68 “outside activities” as long as Chapter 68 “outside activities” provisions adhered toprovisions adhered to

May not allow political activities to interfere w/ May not allow political activities to interfere w/ official duties (e.g., campaign calls from work)official duties (e.g., campaign calls from work)

May not use official position to benefit self or one May not use official position to benefit self or one w/ whom “associated, as defined in §2601(5)w/ whom “associated, as defined in §2601(5)

May not disclose confidential City infoMay not disclose confidential City info Certain high-level appointed officials may be Certain high-level appointed officials may be

completely prohibited from fundraising for any completely prohibited from fundraising for any anyone running for City office or any current City anyone running for City office or any current City official running for ANY office.official running for ANY office.

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E. Political Activities (cont.)E. Political Activities (cont.)

Must avoid any appearance of impropriety, Must avoid any appearance of impropriety, e.g., appearance that political involvement e.g., appearance that political involvement intended to curry favor w/ superiors; intended to curry favor w/ superiors; appearance that personal politics is influencing appearance that personal politics is influencing official dutiesofficial duties

Public servant may run for office, as long as Public servant may run for office, as long as Charter provisions adhered (e.g., cannot use Charter provisions adhered (e.g., cannot use City time or resources for campaign) City time or resources for campaign)

Hatch Act restricts political activities of some Hatch Act restricts political activities of some local govt. employees whose work involves local govt. employees whose work involves federal funding:federal funding:- Absolute ban on running for partisan elective office, - Absolute ban on running for partisan elective office,

even if on unpaid leaveeven if on unpaid leave

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E. Political Activities (cont.)E. Political Activities (cont.) May not coerce or attempt to coerce other May not coerce or attempt to coerce other

public servants to engage in political public servants to engage in political activities or make campaign contributionsactivities or make campaign contributions

Superiors prohibited from requesting Superiors prohibited from requesting subordinates to engage in political subordinates to engage in political activitiesactivities

Public servants may campaign or Public servants may campaign or contribute to campaigns contribute to campaigns voluntarilyvoluntarily, , subject to Chartersubject to Charter

Public servants may, w/ certain Public servants may, w/ certain restrictions, serve as paid consultants to restrictions, serve as paid consultants to campaign organizationscampaign organizations

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VI. CONCLUSIONVI. CONCLUSION

Covered the more crucial parts of NYC Covered the more crucial parts of NYC conflicts of interest laws, rules and guidelinesconflicts of interest laws, rules and guidelines

Have learned enough to at least recognize Have learned enough to at least recognize points of potential conflict of interest, or points of potential conflict of interest, or appearance thereofappearance thereof

Recognize that there is a conflicts issue or Recognize that there is a conflicts issue or potential conflicts issue, and then seek potential conflicts issue, and then seek necessary guidance from either ACS Legal necessary guidance from either ACS Legal Counsel or COIB (anonymous ok!)Counsel or COIB (anonymous ok!)

As COIB staff always emphasize, the safest As COIB staff always emphasize, the safest route is to … JUST ASK!!route is to … JUST ASK!!

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VII. VII. HypotheticalsHypotheticals

- See Hypotheticals - See Hypotheticals Hand-OutHand-Out

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VIII. VIII. Final Questions???Final Questions???

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IX. Where to Get IX. Where to Get More More InformationInformation

NYC Conflicts of Interest Board (COIB)NYC Conflicts of Interest Board (COIB)

2 Lafayette Street, Suite 10102 Lafayette Street, Suite 1010New York, NY 10007New York, NY 10007

(212)442-1400 fax (212)442-1407(212)442-1400 fax (212)442-1407-- ask for “Attorney of the Day”-- ask for “Attorney of the Day”

-- can remain anonymous-- can remain anonymousCOIB’s websiteCOIB’s website: : www.nyc.gov/ethics (extensive info (extensive info

available online!)available online!)

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8/20/2015 1 … to CLE Fest 2006 Conflicts/Ch. 68 Training CLE Credits: 2 (ethics) … Alex...

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