Speers v. New York State Ethics Com'n

• Decision Date: 23 November 1994
• Parties: In the Matter of Craig E. SPEERS, Respondent, v. NEW YORK STATE ETHICS COMMISSION, Appellant, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 201

619 N.Y.S.2d 201

209 A.D.2d 919

In the Matter of Craig E. SPEERS, Respondent, v. NEW YORK STATE ETHICS COMMISSION, Appellant, et al., Respondent.

Supreme Court, Appellate Division Third Department.

Nov. 23, 1994.

G. Oliver Koppell, Atty. Gen. (Denise A. Hartman, of counsel), Albany, for appellant.

Richard E. Casagrande (William P. Seamon of counsel), Albany, for Craig E. Speers, respondent.

Before MIKOLL, J.P., and CREW, CASEY and YESAWICH, JJ.

CREW, Justice.

Appeal from a judgment of the Supreme Court (Keegan, J.), entered August 6, 1993 in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul determinations of respondents that petitioner's service as a member of the City of Buffalo Water Board violates Public Officers Law § 74, 159 Misc.2d 132, 602 N.Y.S.2d 986.

Petitioner is employed as a Senior Examiner of Municipal Affairs by the Office of State Comptroller (hereinafter OSC) in the City of Buffalo, Erie County. In this regard, petitioner performs on-site field examinations of the accounts and fiscal affairs of small units of local government, such as towns and special districts, to determine compliance with various State and local laws and assists in such examinations of larger local government units, such as cities and counties. Petitioner's title is not designated as a policy-making position by OSC.

Following petitioner's appointment to the City of Buffalo Water Board, OSC sought an advisory opinion from respondent New York State Ethics Commission (hereinafter SEC) regarding whether petitioner's service on the Water Board violated Public Officers Law § 74. The SEC thereafter issued Advisory Opinion 92-19, wherein it concluded that petitioner's service on the Water Board created the appearance of a conflict of interest under Public Officers Law § 74. OSC then demanded petitioner's resignation from the Water Board, in response to which petitioner offered to recuse himself and refrain from commenting publicly on any matter involving a dispute between the Water Board and OSC. Petitioner's offer was rejected and he resigned from the Water Board under protest.

Petitioner thereafter commenced this CPLR article 78 proceeding seeking, inter alia, to annul the SEC's determination. Supreme Court granted the petition, finding that both Advisory Opinion 92-19 and OSC's determination requiring petitioner to resign were arbitrary, capricious and irrational. This appeal by the SEC ensued.

There must be a reversal. In determining that petitioner's service on the Water Board gave rise to the appearance of a conflict of interest, the SEC considered and relied upon various provisions of the Public Officers Law, including Public Officers Law § 74(3)(f) which 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". Based upon our review of the record as a whole, we are of the view that the SEC's determination is rational and, as such, Supreme Court erred in granting the petition.

To fully appreciate the basis for the SEC's determination, it is necessary to understand the relationship between the various municipal entities at issue here. Petitioner was appointed to serve as a member of the Water Board, which is charged with,...