ADVISORYOPINION93-03QUESTION:A
member
of
the
legislature
seeks
adviceconcerninghisproposedprivate
business
relationship
with
an
investment
banking
firm.
FACTS:
A
member
of
the
legislature
has
beenoffered
a
part-timeposition
with
an
investment
banking
firm.
The
member
statesthat
compensation
will
be
paidinthe
form
of
a
straight
salary.
He
adds,
liMy
responsibilities,
as
currently
envisioned
~
would
betoassist
in
all
areas
of
the
firm's
investment
bankingactivities,
advisecorporateclientson
issuesrelatingto
marketing,
finance
and
corporate
structure,
participate
in
the
engagement
of
asset
management
of
relationshipswith
institutional
investors
and
provide
advice
and
counsel
to
senior
members
of
the
firm.
11
Themember
indicates
thathe
will
accept
the
position
unlessadvisedotherwise
by
theLegislative
Ethics
Committee.
RELEVANT
STATUTES:
PublicOfficers
Law
§
73
and
§
74.
DISCUSSION:
Investment
banking
involves
selling
securitiesto
investors.
(See
Black's
Law
Dictionary
741
[5thed.
1979].)
The
threshold
question
is
whether
the
acceptance
by
a
member
of
the
legislatureof
a
compensatedposition
involving
all
areasof
a
firm's
investment
banking
activities
is
in
substantial
conflict
with
his
official
dutiesin
the
public
interest.
Public
Officers
Law
§
74(2)
provides
thegeneral
rule
with
respect
to
conflictsof
interest:
"No
member
of
the
legislature
...
shouldhave
any
interest,
financial
or
otherwise
~
direct
or
indirect,
or
engageinanybusiness
or
transaction
or
professional
activity
or
incurany
obligation
of
anynature,
which
is
in
substantial
conflict
with
the
proper
discharge
of
his
duties
in
the
public
interest."
This
generalrule
isintendedto
guard
againstsubstantial
conflicts
of
interest
between
the
member's
outsideactivities
and
his
official
duties.
It
is
not
intendedtoprohibit
members
of
the
legislature
from
having
outside
interests
which
result
in
financial
gain,
but
onlyto
prohibit
financialgains
made
at
the
expense
of
the
public
trust.
Thus,
if
a
member's
financial
posture
will
be
affected
by
an
officialactionon
his
part,
the
test
to
be
appliediswhether
any
financial
gain
heincurs
by
virtue
of
his
officialaction
is
no
greater
than
that
incurred
by
other
members
of
hisbusiness
~
profession,
occupation
or
group.
Absent
any
special
benefitto
his
prospective
employer
orthe
clients
of
hisprospective
employer,
the
committee
sees
no
substantial
conflict
of
interest
between
the
member's
proposed
private
business
activity
and
his
official
duties
as
a
state
legislator.
We
trust
thatthe
member
will
keep
his
role
as
a
representative
of
the
private
corporation
separate
and
distinct
from
his
role
as
a
public
official
when
actingon
behalf
of
the
private
corporation.
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