ogs procurement services group 2009 state purchasing forum new york state ethics for public...

OGS Procurement Services Group 2009 State Purchasing Forum

New York State Ethics for Public Procurement

2009 Purchasing Forum – Ethics for Public Procurement

Presenter’s Contact Information

Howard L. Zwickel, Esq.Deputy Commissioner & Counsel

Office of General [email protected]

(518) 474-5988

Anne G. Phillips, Esq.Associate Counsel


(518) 474-5607

OGS Website:www.ogs.state.ny.us

Public Integrity Website:www.nyintegrity.org

mailto:[email protected]


• Changes to Public Officers Law

• Gifts

• Conflicts of Interest

Agenda

• Outside Employment

• Financial Disclosure

• Post Employment Restrictions

Procurement LobbyingQuestions


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 $75 rule is no longer in effect The new standard is nominal value-gift may be: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


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



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


• 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

Public Officers Law §§73 & 74


• Concept of “employment” is broadly defined

• There is no general prohibition against employees engaging in outside employment or compensated activity

• However, prior approval for such employment must be obtained from your state agency 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

Outside Employment or Investments


• 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, Contracts to, or Benefits For Family Members or Others

(Public Officers Law §74)


• 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.

Employment of Current State Employees


• 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

Release of Confidential Information (Public Officers Law §74)


(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.

Gifts


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

Financial Disclosure


(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.

Post Employment Restrictions


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.



• 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 each state agency to conduct a review and investigation about the impermissible Contacts

• OGS is responsible for maintaining on the internet lists of businesses that have violated requirements



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



Do’sFind 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-kDo’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 your counsel or Ethics Officer in its

investigation


State Finance Law §§ 139-j and 139-kDon’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 your Counsel or

Ethics Officer with any questions about the Law or if additional training is needed.



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


(518) 474-5988

Anne G. Phillips, Esq.Associate Counsel


(518) 474-5607

OGS Website:www.ogs.state.ny.us

Public Integrity Website:www.nyintegrity.org

ogs procurement services group 2009 state purchasing forum new york state ethics for public...

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