June 29, 2009
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
I have received your letter and hope that you will accept my apologies for the delay in response.
The matter relates to the Town of Smithtown Code of Ethics and the public’s right of access to disclosure statements prepared to comply with the Code. You questioned the propriety of a certain provision within the Code which states that:
“Confidentiality and/or an exemption may be granted by the Board of Ethics with regard to such parts that, in the opinion of the Board of Ethics, pose no conflict of interest and/or have no relationship to the official duties of the employee.”
In response to your contention, the Supervisor, as I understand your letter, wrote that:
“...the section you inquired about has been in the Code of Ethics since it was first adopted in 1992...That section was modeled after Article 18 of the General Municipal Law which, among other things, provides for granting confidentiality where information has no significant relationship to the carrying out of the reporting individual’s duties.”
While I agree with the Supervisor’s statement, from my perspective, the provision in the Code quoted above is not typical, nor is it consistent with the direction provided in the General Municipal Law. The problem, in my view, relates to the term “and/or”, and particularly “or”. The ethics laws or codes with which I am familiar generally require that disclosure statements filed by government officers or employees be made available to the public with two exceptions.
Although the first may not be relevant in the case of the Town’s Code, often public officers or employees, including myself, must report the nature and value of their assets. For example, if I own shares of stock in a certain corporation, I must report that information with a “category of value.” Category A involves a value of $0 to $5,000, category B, $5,000 to $20,000, category C, $20,000 to $60,000, etc. I am required to report the categories of value to the State Commission on Public Integrity on my disclosure statement, but the Executive Law specifies that those categories of value must be withheld from the public. In short, while the public has the right to know the nature of my assets, as well as those of my spouse or minor children, the public does not have the right to know the value of the assets.
I believe that the second clearly relates to the issue that you raised. In many instances, including those involving myself and thousands of other state employees, an individual may ask that a particular item reported on his/her financial disclosure statement be deleted prior to disclosure of the statement to the public based on contention that the item has “no material bearing on the discharge of the reporting person’s official duties” [see Executive Law, §94(9)(h)]. If an ethics commission or similar body grants the request, that item is deleted from the statement prior to disclosure of the remainder of the statement to the general public.
Other than the category of value of an asset, the only items within disclosure statements that are typically withheld from the public are those which, on request, are found to have no material bearing on the discharge of duties of the employee filing the statement.
Assuming that you quoted the provision in the Town’s code accurately, it permits the Town to withhold not only those items that “have no relationship to the official duties of the employee”, but also those items that “pose no conflict of interest.” I believe that findings or conclusions that public employees are indeed engaged in conflicts of interest are rare. If that is so, and if the Town code permits any item which poses no conflict of interest to be confidential, granting requests to withhold those items could result in the disclosure of virtually no information reported by the employee. That result would, in my opinion, conflict with one of the goals inherent in a disclosure requirement, that the public must have the right to gain access to information sufficient to ascertain whether there is an actual conflict of interest or perhaps the appearance of a conflict of interest.
If the Code stated that, in the opinion of the Board of Ethics, an exemption from disclosure may be granted when an item “poses no conflict of interest and has no relationship to official duties of the employee”, I believe that the Code would be consistent with the thrust of the General Municipal Law, as well as other laws or codes requiring the preparation and submission of disclosure statements by public officers and employees. It is suggested that a recommendation might be offered to amend the Town’s Code in a manner consistent with the foregoing.
I hope that I have been of assistance.
Robert J. Freeman
cc: Hon. Patrick R. Vecchio, Town Supervisor