Hancox v. Bress

• Decision Date: 14 October 1994
• Citation: 208 A.D.2d 1031,617 N.Y.S.2d 398
• Parties: , 95 Ed. Law Rep. 335 In the Matter of Steven J. HANCOX, Appellant, v. Joseph M. BRESS, as Chair of the New York State Ethics Commission, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 398

617 N.Y.S.2d 398

208 A.D.2d 1031, 95 Ed. Law Rep. 335

In the Matter of Steven J. HANCOX, Appellant, v. Joseph M. BRESS, as Chair of the New York State Ethics

Commission, Respondent.

Supreme Court, Appellate Division,

Third Department.

Oct. 14, 1994.

Lefkowitz & Keefe (Thomas K. Keefe, of counsel), Albany, for appellant.

G. Oliver Koppell, Atty. Gen. (Lew A. Millenbach, of counsel), Albany, for respondent.

Before CARDONA, P.J., and MERCURE, CREW, CASEY and PETERS, JJ.

CREW, Justice.

Appeal from a judgment of the Supreme Court (Ceresia Jr., J.), entered August 22, 1994 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner's outside activity request as violative of Public Officers Law § 74.

Petitioner is employed by the Office of the State Comptroller (hereinafter OSC) in the title of Principal State Accounts Auditor and is assigned to the Division of Management Audit and Financial Reporting. OSC has designated petitioner's title as a policy-making position. In this capacity, petitioner is responsible for, inter alia, supervising teams of auditors performing audits of State agencies and special funds.

In November 1993, petitioner submitted an outside activity request to OSC's Ethics Committee seeking permission to serve as a member of the Albany City School District Board of Education. This request was approved subject to certain conditions not at issue on appeal. Petitioner thereafter submitted the request to the State Ethics Commission (hereinafter SEC) for approval. The SEC denied petitioner's request, finding that because petitioner occupied a policy-making position with OSC, the public reasonably could perceive that the school district would receive preferential treatment in any audit conducted by OSC and that petitioner, in turn, would be able to provide assistance to the school district in preparing for any such audit. Petitioner thereafter commenced this CPLR article 78 proceeding challenging the SEC's determination. Supreme Court upheld the determination and dismissed the petition, and this appeal by petitioner followed.

Based upon our review of the record and the relevant statutory provisions, we are persuaded that the SEC's determination lacks a rational basis and, as such, cannot stand. In denying petitioner's outside activity request, the SEC relied upon two provisions in the Public Officers Law. The first provision, Public Officers Law § 74(3)(f), provides, in relevant part, that "[a]n officer or employee of a state agency * * * should not by his conduct give reasonable basis for the impression that any person can improperly influence him or unduly enjoy his favor in the performance of his official duties". The second provision, Public Officers Law § 74(3)(h), provides, inter alia, that "[a]n officer or employee of a state agency * * * should endeavor to pursue a course of conduct which will not raise suspicion among the public that he is likely to be engaged in acts that are in violation of his trust". In our view, the record simply does not support the SEC's conclusion that petitioner's service on the Board of Education would run afoul of either of these provisions.

It is uncontroverted...