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Nepotism: The State Inspector General alleges that the NYSTI Producing Director did not recognize NYSTI is subject to the State?s ethics rules

Nepotism: The State Inspector General alleges that the NYSTI Producing Director did not recognize NYSTI is subject to the State?s ethics rules
State Inspector General?s ?Report of Investigation of the New York State Theatre Institute?

New York State Inspector General Joseph Fisch alleges that the New York State Theatre Institute (NYSTI) under the direction of its Producing Director, Patricia Snyder, failed to recognize NYSTI?s existence as a public entity subject to the State?s ethics rules.

The Inspector General?s report states that:

?In practice, [Director Patricia] Snyder exercised unquestioned control over the selection of plays to be produced by NYSTI; directors to direct these productions; and the terms and conditions of employment of employees and artistic staff to perform in these productions. Under this authority, Snyder over a long period has routinely hired members of her immediate family for NYSTI productions without regard for state prohibitions on conflicts of interest. This pattern of nepotism has resulted in direct payments, reimbursements and other benefits, amounting to hundreds of thousand of dollars, to Snyder?s sons, daughters-in-law, and husband.?

According to the Inspector General?s findings, Snyder had primary, if not sole, responsibility over all NYSTI contracts including those resulting in payments to her family members and ?she made no effort to screen or recuse herself from involvement in these contracts.? Rather, said the Inspector General, Snyder directly involved herself in these arrangements in apparent violation of the provisions of the state Public Officers Law on nepotism and conflicts of interest.*

The report states that ?Despite the prohibitions in the Public Officers Law against actual and apparent conflicts of interest, Snyder defended her hiring of relatives, even claiming in her testimony to the Inspector General, ?There is no law in New York State on nepotism? ? [and] NYSTI Board of Directors Chairman David Morris also testified he is ?not aware of any restrictions? on Snyder?s hiring of family members, a practice he indicated that he and the Board knew of and approved.?

Judge Fisch said that Snyder and other NYSTI employees must abide by the provisions of the state Public Officers Law directed at dispelling even the appearance of favoritism.

According to Judge Fisch, ?Various provisions of Public Officers Law §74 directly prohibit such conduct these ethics rules are designed to prevent not only actual conflicts of interest but to dispel even the appearance of such.? Specifically, Judge Fisch continued, ?These standards attempt to assure the public?s confidence in State and employees as they discharge their official duties. A public servant?s actions and affiliations must be above reproach, even if no actual conflict of interest is present. Any associations that give rise to the suspicion of favoritism, self-dealing or personal private gain by State officers shake the public?s confidence.?

Randall Comments: Although an anti-nepotism policy is generally viewed as barring of the employment of relatives in the same organization, technically nepotism involves an appointing authority appointing others to public positions because of the blood or marital relationship of the individual to the appointing authority. In other words, nepotism does not simply involve the employment of relatives within an organization; it results when the individual is employed within the organization solely because of the influence or authority of his of her relative to effect the employment.

In Commissioner of Education Decision #12794, the Commissioner of Education noted that §3016 of the Education Law deals with the issue of the employment of a relative by blood or marriage of a member of its school board as a teacher by the district. In essence, it requires that any such appointment must be approved by a two-thirds vote of the board. This requirement has the effect of countering potential favoritism in the selection of employees by the school board.

The focus of Decision12794, however, concerned the issue of the reinstatement of a relative of a school board member as teacher from a preferred list in contrast to the appointment of a relative de novo.

The Commissioner, noting that a school board may decline to place a tenured teacher on the preferred list only if the individual does not have a record of faithful, competent service in the office or position he or she has filled, concluded that the two-thirds vote requirement set out in §3016 does not apply where a preferred list mandates reinstatement of an individual to a teaching position in the school district.

The Commissioner also noted that although §3016 does not contain any explicit disclosure requirement of any such relationship, such a disclosure might be advisable to avoid even an appearance of favoritism.

In Opinions of the Attorney General, 92 Informal 61, the Attorney General, when asked how a member of a city council should conduct himself or herself when a matter involving the terms and conditions of employment of the spouse of the member was before the council, opined that the member "must recuse himself or herself from participating in matters affecting the compensation, employment and other terms and conditions of employment of his or her spouse.? The opinion notes that "public officers have responsibility to exercise their official duties solely in the public interest [and] should avoid circumstances which compromise their ability to make impartial judgments." Further, public officers must avoid the appearance of impropriety in order to maintain public confidence in government.

In some instances anti-nepotism rules have been codified by a State agency or by a political subdivision of the State. For example 22 NYCRR 8.1 of the New York Official Compilation of Rules and Regulations, which applies to the judiciary, provides: No person who is a "relative within the sixth degree of relationship" of any judge may be appointed to any State-paid position in the Unified Court System.

As Jay Hall of Everton Publishers explains, a "degree of separation" refers to the number of generations between each person and their common ancestor.

An example of six degrees of separation: second cousins. Second cousins are three generations from their common grandparents and thus are separated by "six degrees." First cousins are separated by two generations and enjoy four degrees of separation. There, of course, could be more complex relationships involving six degrees of separation.

The Office of Court Administration views "six degrees" as applying up to and including persons who are second cousins of a judge.

There is some case law concerning nepotism in employment situations as well. In Gabriele v Metropolitan Suburban Bus Authority, 239 A.D.2d 575, the Appellate Division considered the issue.

Vincent Gabriele III began working for the Metropolitan Suburban Bus Authority in 1985. He received a number of promotions and when the Authority was considering filling two foreman positions, it ranked Gabriele number 3 of nine candidates.

However, the Authority appointed the candidates who ranked fifth and seventh on its list to the vacancies. It said the reason Gabriele was not selected was that his father and uncle were foremen with the Authority. The Authority contended that promoting Gabriele would violate its own "anti-nepotism" policy.

Gabriele sued, seeking a court order directing his appointment to the foreman position, with back pay and benefits.

One of the points made by the Appellate Division was that "there was no official anti-nepotism policy in effect until after the promotion decision ... was made". In addition, the record showed that "anti-nepotism" concerns were not mentioned in any job posting, application form or otherwise communicated to employees or prospective employees by the Authority.

The Appellate Division also commented that it was undisputed that during Gabriele's ten years of service with the Authority, "several people were hired for positions where they were either supervised by family members or working in the same department with family members."

Concluding that the Authority's denying Gabriele's promotion on the basis of an unsubstantiated anti-nepotism policy was arbitrary and capricious, the Appellate Division approved the trial court's decision directing Gabriele's retroactive appointment as a foreman, with back salary and benefits.

* Public Officers Law §74, Code of ethics.

The Report of the Inspector General is posted on the Internet at:
http://www.ig.state.ny.us/pdfs/Report%20of%20Investigation%20of%20the%20New%20York%20State%20Theater%20Institute.pdf

Full post as published by New York Public Personnel Law on April 21, 2010 (boomark / email).