Ethics - Information for those who appear or practice before the Department of Public Service



INTRODUCTION

The Public Service Commission is required to ensure that the services provided by companies subject to its supervision are safe and adequate, and offered at just and reasonable rates. It is essential that those who appear or practice before the Department of Public Service (Department) and employees of the Department carry out their respective duties with an awareness of the ethical responsibilities that underpin their work.

In this website you will find references to the relevant provisions of the Public Service Law, the Executive Law, and the Public Officers Law, as well as related information. Please note that the website is educational and is not intended to be a substitute for guidance for a particular set of circumstances. Ethics questions are typically very fact-sensitive. In addition, with respect to ethics questions, an “ounce of prevention” may be invaluable. Therefore, you are encouraged to first contact your company’s ethics compliance officer if you have any questions concerning these statutes and want to know how they may apply when in light of your interactions with Department employees. If your company does not have an ethics compliance officer, you may contact me. Any ethics compliance person may also contact me regarding the application of these statutes to the interaction of their company’s employees with Department employees.

Kathleen H. Burgess
Secretary to the Commission
Department Ethics Officer
(518) 474-6530
Secretary@dps.ny.gov

NOTICE OF APPEARANCE

Executive Law§166 requires the Department, as a regulatory agency, to maintain a record of who appears before the Department or the Commission for a fee as a third party (i.e., an attorney, an agent, lobbyist, or representative) on behalf of a person or organization subject to the regulatory jurisdiction of the Department or the Commission. These records are available for public inspection.

All individuals who appear on behalf of a person or organization subject to the regulatory jurisdiction of the Commission are required to complete the “Notice of Appearance” forms that are maintained at each Department location. At the Department’s Albany offices, the Notice of Appearance forms are located on each floor. Please provide all of the requested information.

OFFERING OR GIVING GIFTS TO DEPARTMENT EMPLOYEES

BY COMPANIES SUBJECT TO THE COMMISSIONS SUPERVISION

Public Service Law §15 prohibits an employee, officer, agent or attorney of a company subject to the Commission’s supervision from offering a gift of any kind to a Department employee or a Commissioner. The purpose of this statute is to eliminate any improper influence, as well as the appearance of any improper influence, which may be brought to bear on Department employees who may be offered gifts by companies or their personnel who have an interest in the Department employee's work.

The integrity of the work of company personnel and Department employees matters to the ratepayers of New York. It is critical, therefore, that our individual and collective work product remains above reproach.

Framework on Gifts

Department staff and representatives of the large utility companies have developed the following framework to address various situations where company personnel and Department employees interact in the performance of their respective official duties and there may be an item of value available to a Department employee.

This framework does not, and cannot, anticipate all possible scenarios. Therefore, company personnel should contact the appropriate Compliance Officer or Ethics Counsel within their company concerning the propriety of offering or giving an item of value to a Department employee. Department employees should contact the Department’s Ethics Officer with any questions regarding whether it is permissible to accept a gift consistent with Public Service Law §15 and Public Officers Law §§73(5) and 74.

With the common goal of compliance with Public Service Law §15, every company’s Compliance Officer or Ethics Counsel is strongly encouraged to contact the Department’s Ethics Officer to confer about potential gift issues.

Framework for Gifts

Best Practices

Department staff and representatives of the large utility companies also developed the following set of Best Practices that companies are encouraged to employ in order to ensure that its officers, attorneys, agents and employees are informed of Public Service Law §15 when interacting with employees of the Department. Working with the companies to achieve a common goal of compliance with Public Service Law §15 , the Best Practices also includes steps that the Department will take with respect to informing employees about the restrictions on gifts.

Best Practices

Training Module on Gifts

It is often helpful to consider some situations of when an item of value offered to a Department employee may be a “gift.” The following Training Module on gifts was prepared to assist employees, officers, agents or attorneys of companies subject to the Commission’s supervision and a Department employee in their understanding of Public Service Law §15.

This Training Module is not intended to be a substitute for guidance for a particular set of circumstances. Ethics questions are typically very fact-sensitive. Please consult with your Company’s compliance officer or the Department’s Ethics Officer if you have questions.

Gift Training (49 Page. 412K PDF)

BY COMPANIES NOT SUBJECT TO THE COMMISSIONS SUPERVISION

Public Officers Law §§73(5) prohibits a State employee from accepting a gift of more than “nominal value” under circumstances in which it is reasonable to infer that the gift was given intended to influence the State employee, or could reasonably be inferred that the gift was intended to influence the State employee, or is intended as a reward for any official action on his or her part.

In assessing whether a gift is given "under circumstances in which it could reasonably be inferred that the gift was intended to influence" a State employee, the Commission on Public Integrity, the predecessor agency to the Joint Commission on Public Ethics (“JCOBE”), stated in the Interim Guidance on Gifts and Advisory Opinion No. 08-01 that it is necessary to consider the donor of the gift. As a general rule, entities that are considered “disqualified sources” should not, directly or indirectly, offer or give a gift of more than nominal value, nor should a State officer or employee, directly or indirectly, solicit such a gift from a disqualified source. “Gifts” includes, for example, complimentary attendance to certain events, meals and refreshments, and travel.

A disqualified source is an individual or non-governmental entity that has some type of business relationship with the State agency. A disqualified source would include, among others, an entity that is regulated by, regularly negotiates with, appears before other than in a ministerial matter, does business with, or seeks to contract with or has contracts with the Department.

Companies that are not regulated by the Commission but otherwise appear or practice before the Department are considered “disqualified sources” to the Department. Therefore, Department staff is generally not permitted to accept gifts of more than nominal value. However, the Commission on Public Integrity further provided in Advisory Opinion No. 08-01 that the exceptions to the definition of “gift” set forth in Legislative Law §1-c(j) are considered “permissible gifts” when offered by disqualified sources to State employees.

Please consult with your Company’s compliance officer or the Department’s Ethics Officer if you have questions regarding the propriety of offering any item of value to a Department employee.

FORMER DEPARTMENT EMPLOYEES WHO APPEAR OR PRACTICE BEFORE THE DEPARTMENT

Former Department employees who appear or practice before the Department must be aware of the restrictions set forth in Public Officers Law §73(8) regarding the post-employment restrictions. The post-employment restrictions, set forth in Public Officers Law §73(8)(a), are applicable to all former State employees after they leave State service. The purpose of the restriction is “to provide reasonable assurance that a former State employee will not leverage his or her knowledge, experience and contacts gained in State service to his or her advantage or that of a client.” (Advisory Opinion 10-01) JCOPE has jurisdiction to provide guidance and enforce these provisions.

There are two restrictions in the statute. The two-year bar in Public Officers Law §73(8)(a)(i) prohibits a former State officer or employee, for two years following his or her separation from State service, from “appearing or practicing” before his or her former agency, or rendering service for compensation in relation to any case, proceeding, application or other matter before his or her former agency. It is not necessary for the former agency to know that the former employee is working on a matter for there to be a violation. (Advisory Opinion 90-7)

The lifetime bar, set forth in Public Officers Law §73(8)(a)(ii), prohibits a former State officer or employee from providing services before a State agency, and from providing compensated services on behalf of any person, firm corporation or other entity, that is in relation to any case, proceeding application or transaction with respect to which the former employee was directly concerned and in which he personally participated while a State employee, or was under his or her active consideration.

Former employees who intend to appear or practice before the Department may also want to consider contacting JCOPE for an “informal opinion” concerning the application of the post-employment restrictions to your circumstances. The address is 540 Broadway, Albany, NY, 12207 or www.jcope.ny.gov.