McCulloch v. New York State Ethics Commission

184 Misc. 2d 546, 708 N.Y.S.2d 845, 2000 N.Y. Misc. LEXIS 195
CourtNew York Supreme Court
DecidedMay 25, 2000
StatusPublished
Cited by1 cases

This text of 184 Misc. 2d 546 (McCulloch v. New York State Ethics Commission) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCulloch v. New York State Ethics Commission, 184 Misc. 2d 546, 708 N.Y.S.2d 845, 2000 N.Y. Misc. LEXIS 195 (N.Y. Super. Ct. 2000).

Opinion

OPINION OF THE COURT

Dan Lamont, J.

Petitioner George M. McCulloch brings this CPLR article 78 proceeding seeking a judgment: (1) annulling the determination of the respondent, the New York State Ethics Commission; that petitioner knowingly and intentionally violated Pub-[547]*547lie Officers Law § 73 (8) (a) (ii), and/or (2) declaring Public Officers Law § 73 (14) to be unconstitutional and declaring the determination of the respondent null and void.

The respondent has submitted an answer asserting the following objections in point of law: (a) the petition raises a substantial evidence question requiring transfer to the Appellate Division, and (b) the petitioner lacks standing to assert the sixth and seventh claims set forth in the petition. The answer also asserts several affirmative defenses.

BACKGROUND

While an employee of the Tug Hill Commission, a State agency, petitioner prepared a Federal HUD Community Development Block Grant (Grant) application for a wastewater treatment system in the Town of Forestport (Town). The Town was awarded the Grant — which included a $16,000 fee for its administration. While still working for the Tug Hill Commission, the petitioner administered the Grant for the Town until he left State employment in May of 1994.

Petitioner then began work in the private sector as a principal in a firm called the MWD Group. The Town terminated its contract with the Tug Hill Commission with its express agreement, and then hired petitioner to complete the administration of the Grant through his private company. Petitioner agreed to complete the project for $4,500 — the amount then remaining of the $16,000 originally allotted in the Grant for administration fees. Petitioner then completed the administration of the Grant. Petitioner did not appear before or render any services before the Tug Hill Commission or any State agency.

In July of 1998, respondent Ethics Commission received correspondence from the Tug Hill Commission alerting respondent to potential violations of the Public Officers Law regarding the foregoing activities of petitioner. Respondent Ethics Commission investigated the matter and determined that there was reasonable cause to believe that petitioner had violated Public Officers Law § 73 (8) (a) (ii). Specifically, the undisputed facts clearly established that the petitioner had continued to work for the Town for a fee administering the same Grant which he had secured and administered for the Town while employed by the Tug Hill Commission.

The respondent Ethics Commission issued a notice of reasonable cause dated January 27, 1999. The petitioner moved to dismiss the charges, and the respondent filed a cross motion [548]*548for summary judgment. In a decision dated May 17, 1999, the Hearing Officer denied both of the motions and determined that an appearance before a State agency is not required in order for a former State employee to violate Public Officers Law § 73 (8) (a) (ii). In a decision dated June 28, 1999, the Hearing Officer determined that petitioner “was intimately involved” with the Town’s Grant. The Hearing Officer further found that “it defies common sense to claim that [petitioner’s actions] fail to rise to the level of personal participation” and that petitioner had violated Public Officers Law § 73 (8) (a) (ii).

On September 13, 1999, a hearing was conducted to determine whether a penalty would be imposed. In a decision dated September 20, 1999, the Hearing Officer recommended a sanction of $4,500. In assessing this penalty, the Hearing Officer also determined that the petitioner’s conduct was not wilful. By decision and notice of civil assessment dated October 27, 1999, respondent found petitioner’s conduct knowing and intentional, but modified the penalty downward to $2,000. The petitioner commenced the instant CPLR article 78 proceeding on February 8, 2000.

THE APPLICABLE STATUTE

Public Officers Law § 73 (8) (a), in relevant part, states:

“(i) No person who has served as a state officer or employee shall within a period of two years after the termination of such service or employment appear or practice before such state agency or receive compensation for any services rendered by such former officer or employee on behalf of any person, firm, corporation or association in relation to any case, proceeding or application or other matter before such agency.

“(ii) No person who has served as a state officer or employee shall after the termination of such service or employment appear, practice, communicate or otherwise render services before any state agency or receive compensation for any such services rendered by such former officer or employee on behalf of any person, firm, corporation or other entity in relation to any case, proceeding, application or transaction with respect to which such person was directly concerned and in which he or she personally participated during the period of his or her service or employment, or which was under his or her active consideration.” (Emphasis supplied.)

CONSTRUCTION OF STATUTES

McKinney’s Consolidated Laws of NY, Book 1, Statutes § 92, in part, states:

[549]*549“a. Generally

“The primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature.

“b. Ascertainment of intention

“The intention of the Legislature is first to be sought from a literal reading of the act itself, but if the meaning is still not clear the intent may be ascertained from such facts and through such rules as may, in connection with the language, legitimately reveal it.”

McKinney’s Consolidated Laws of NY, Book 1, Statutes § 94, in part, states: “The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction.”

DISCUSSION

This court holds and determines that a literal reading of the statute and its most obvious sense requires that the words “any such services” in clause (ii) be construed as applying to the words “appear, practice, communicate or otherwise render services before any state agency” (Public Officers Law § 73 [8] [a] [ii] [emphasis supplied]; see, McKinney’s Cons Laws of NY, Book 1, Statutes § 254). This interpretation gives the clear language of the statute the plain meaning which it expresses (Temple Marble & Tile v Union Carbide Marble Care, 87 NY2d 574, 580 [1996]). This court also notes that nearly identical language immediately follows the phrase “receive compensation for any services” in clause (i) and the phrase “receive compensation for any such services” in clause (ii), to wit: “rendered by such former officer or employee on behalf of any person, firm, corporation or [(i) association] [(ii) other entity].”

Giving the words within the statute such a literal meaning does not render Public Officers Law § 73 (8) (a) (ii) meaningless.

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Related

McCulloch v. New York State Ethics Commission
285 A.D.2d 236 (Appellate Division of the Supreme Court of New York, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
184 Misc. 2d 546, 708 N.Y.S.2d 845, 2000 N.Y. Misc. LEXIS 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcculloch-v-new-york-state-ethics-commission-nysupct-2000.