When federal officials sit on a New York public benefit corporation's board to monitor federal funds, must they file New York's annual financial disclosure under Public Officers Law § 73-a?

Plain-English summary

The New York State Ethics Commission noticed that several federal officials had been appointed as members or directors of New York State public benefit corporations and designated as "policy makers" by those corporations. Public Officers Law § 73-a normally requires "policy makers" on such corporations to file New York's annual financial disclosure statement. The example the Commission gave was the U.S. Secretary of Transportation, who served ex officio as a director of the Penn Station Redevelopment Corporation. The Secretary, like other federal members, was not acting in his personal capacity or representing New York; he was representing the federal government to monitor federal funds. Should he, and similarly placed federal officials, have to file New York's § 73-a disclosure?

The AG said no. Two intertwined reasons.

Federal supremacy. Under M'Culloch v Maryland, 17 US 316 (1819), and the long line of cases that followed it, a State cannot extend its sovereignty to federal officials carrying out federal duties. Johnson v Maryland, 254 US 51 (1920), articulates the specific application: a State cannot impose qualification requirements on federal officials in addition to those Congress has set. The Supreme Court has reapplied that principle in Leslie Miller, Inc. v Arkansas, 352 US 187 (1956), and the Ninth Circuit applied it in United States v City of Pittsburgh, California, 661 F2d 783 (9th Cir 1981). New York's § 73-a is exactly the kind of qualification-on-federal-service that those cases prohibit. The U.S. Secretary of Transportation is appointed by the President with the Senate's advice and consent (49 USCA § 102(b)); through that appointment process, the federal government has determined that the appointee is qualified. New York cannot add a state-financial-disclosure layer to that federal qualification.

Legislative intent and exclusion of multi-state authorities. Even setting supremacy aside, § 73-a's legislative history suggests it was never aimed at federal officials. The New York State Ethics in Government Act of 1987, of which § 73-a is part, was enacted in response to mid-1980s corruption scandals in New York City and State government. The aim was to give New Yorkers confidence in the integrity of their public servants. Federal officials monitoring federal funds are not the target the New York Legislature had in mind. Additionally, the statute specifically excludes members or directors of multi-state authorities from financial disclosure, which further suggests the State did not intend its disclosure regime to reach across sovereignty lines.

Federal disclosure already covers them. The AG noted in a footnote that the federal government has its own financial-disclosure regime under 5 USCA App 4 §§ 101 et seq., which probably applies to these officials. Copies of federal disclosure reports are available to the public on request under 5 USCA App 4 § 105(b)(1). The federal system addresses the disclosure interest with respect to federal officials; New York adding its own would be both duplicative and constitutionally suspect.

The AG also did not address whether New York public benefit corporations that have federal officials as members or directors might themselves qualify as "multi-state authorities" within § 73-a's exclusion. That question was left open because the supremacy holding was sufficient.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why is M'Culloch v Maryland relevant to a financial-disclosure question?

M'Culloch established the foundational principle that a State cannot use its own sovereign power to interfere with the operations of the federal government. A financial-disclosure requirement that the State Ethics Commission would enforce on a federal official is an exercise of State sovereignty over a federal officer. The basic logic of M'Culloch extends to that kind of interference.

Could New York require the public benefit corporation itself to disclose information about its federal members?

The opinion does not address that. § 73-a is structured as an individual-filing requirement: the officeholder files. A separate corporate-level disclosure would be a different statutory question, with its own supremacy and preemption analysis.

What's the federal disclosure under 5 USCA App 4?

The Ethics in Government Act of 1978 set up federal financial-disclosure requirements for senior federal officials, including Cabinet members, presidential appointees, and certain career executives. The federal disclosure forms cover assets, income, transactions, and certain debts. The reports are public, with copies available on request under § 105(b)(1).

What about a State employee on a federal board, in the reverse direction?

Different analysis. The State can require a State employee to file under § 73-a regardless of whether he also serves on a federal board. The supremacy analysis cuts one direction only: the federal government's interests are protected from State interference, but a State can regulate its own employees.

Does this principle apply to all state-imposed requirements on federal officials?

Generally, yes. The doctrine is broad: State qualification, licensing, registration, and similar requirements that single out federal officials acting in their federal capacity are vulnerable to supremacy challenge. The cases the AG cited collectively cover a wide range of State-imposed obligations. Specific applications vary with the State requirement at issue.

Background and statutory framework

The New York State Ethics in Government Act of 1987 was a response to a series of corruption revelations in New York City and State government in 1985 and 1986. Tristram J. Coffin, The New York State Ethics in Government Act of 1987: A Critical Evaluation, 22 Columbia J.L. & Soc. Probs. 269 (1989), traces the legislative motivation. Public Officers Law § 73-a, the annual financial-disclosure requirement, was a central piece of the Act.

Section 73-a covers State officers and employees. The definition of "state officer or employee" in § 73-a(1)(c)(iii) includes members or directors of public authorities (other than multi-state authorities) and public benefit corporations where at least one member is appointed by the Governor, who hold policy-making positions as determined annually by the appointing authority. The exclusion of multi-state authorities is explicit and was deliberate.

The federal supremacy doctrine applied here has been settled since M'Culloch v Maryland. Modern cases continue to refine its application to specific State-imposed requirements; Johnson v Maryland is the controlling case for State qualification requirements on federal officers. The opinion treats the application as straightforward.

Citations

• Public Officers Law § 73-a (New York financial disclosure requirement).
• Public Officers Law § 73-a(1)(c)(iii) (definition of "state officer or employee" including covered policy makers).
• Public Officers Law § 73-a(2)(a) (annual filing requirement).
• 5 USCA App 4 §§ 101 et seq. (federal Ethics in Government Act financial-disclosure regime).
• 5 USCA App 4 § 105(b)(1) (public availability of federal disclosure reports).
• 49 USCA § 102(b) (U.S. Secretary of Transportation appointment).
• Johnson v Maryland, 254 US 51 (1920) (State cannot impose qualification requirements on federal officials).
• Leslie Miller, Inc. v Arkansas, 352 US 187 (1956) (preemption of state contractor-licensing requirements on federal officials).
• United States v City of Pittsburgh, California, 661 F2d 783 (9th Cir 1981) (federal supremacy in similar contexts).
• M'Culloch v Maryland, 17 US 316 (1819) (foundational federal supremacy doctrine).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/98-F1_pw.pdf

Original opinion text

PUBLIC OFFICERS LAW § 73-a; 5 USCA App 4 §§ 101, et seq.; 5 USCA
App 4 § 105(b)(1); 49 USCA § 102(b).
The State of New York may not impose its requirement of
financial disclosure on federal officials serving as members or
directors of New York State public benefit corporations in their
federal capacities to monitor federal funds, even though these
officials have been deemed "policy makers".
January 21, 1998

Hon. Richard Rifkin
Executive Director
New York State Ethics Commission
39 Columbia Street
Albany, NY 12207-2717

Formal Opinion
No. 98-F1

Dear Mr. Rifkin:
You have requested an opinion as to whether federal
officials should be required to file New York State financial
disclosure statements under section 73-a of the Public Officers
Law. Section 73-a requires the filing of financial disclosure
statements by any member or director of a public benefit
corporation, at least one of whose members is appointed by the
Governor, who holds a policy-making position.
You have explained that several federal officials have been
appointed to serve as members or directors of New York State
public benefit corporations and have been designated by those
corporations as "policy makers". In our conversations, you have
informed us that, in general, these federal officials serve in
their federal capacities and represent the federal government in
monitoring federal funds. These officials are not acting in
their individual capacities or as representatives of the State of
New York. However, because these federal officials serve as
members and/or directors of New York State public benefit
corporations and have been designated as "policy makers", you
have asked whether they must comply with the financial disclosure
requirement contained in Public Officers Law § 73-a.
Public Officers Law § 73-a provides, in pertinent part, as
follows:
(a) Every . . . state officer or employee
. . . shall file an annual statement of
financial disclosure containing the

2
information and in the form set forth in
subdivision three hereof. Public Officers
Law § 73-a(2)(a).
The term "state officer or employee" means:
(iii) members or directors of public
authorities, other than multi-state
authorities, public benefit corporations and
commissions at least one of whose members is
appointed by the governor, and employees of
such authorities, corporations and
commissions who . . . hold policy-making
positions, as determined annually by the
appointing authority and set forth in a
written instrument which shall be filed with
the state ethics commission . . . . Id.,
§ 73-a(1)(c)(iii).
The Public Officers Law specifically requires members or
directors of the covered public benefit corporations, who have
been designated by their respective corporations as policy
makers, to file annual financial disclosure statements.
Therefore, it would appear that all such members or directors of
public benefit corporations, regardless of their affiliation,
would be included within the mandate of the Public Officers Law.
However, because the members and directors at issue serve in
their federal capacities, whether the State of New York can
impose its mandates on the representatives of a separate
sovereign government becomes an issue.
Under the precepts of supremacy and federalism, a state
cannot impose qualifications on federal officials in addition to
those the federal government has deemed sufficient. Johnson v
Maryland, 254 US 51 (1920). See also, Leslie Miller, Inc. v
Arkansas, 352 US 187 (1956); United States v City of Pittsburgh,
California, 661 F2d 783 (9th Cir 1981). In Johnson v Maryland,
the Supreme Court of the United States held that:
It seems to us that the immunity of the
instruments of the United States from state
control in the performance of their duties
extends to a requirement that they desist
from performance until they satisfy a state
officer upon examination that they are
competent for a necessary part of them and
pay a fee for permission to go on. Such a
requirement does not merely touch the

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Government servants remotely by a general
rule of conduct; it lays hold of them in
their specific attempt to obey orders and
requires qualifications in addition to those
that the Government has pronounced
sufficient. It is the duty of the Department
to employ persons competent for their work
and that duty it must be presumed has been
performed. Johnson v Maryland, 254 US at 57.
The Court's holding in Johnson follows directly from its dictates
in M'Culloch v Maryland, 17 US 316 (1819). In M'Culloch, the
Court held that the people of a single state could not extend
their sovereignty over the federal government.
The sovereignty of a state extends to
everything which exists by its own authority,
or is introduced by its permission; but does
it extend to those means which are employed
by Congress to carry into execution powers
conferred on that body by the people of the
United States? We think it demonstrable,
that it does not. Those powers are not given
by the people of a single state. They are
given by the people of the United States, to
a government whose laws, made in pursuance of
the constitution, are declared to be supreme.
Consequently, the people of a single state
cannot confer a sovereignty which will extend
over them. M'Culloch v Maryland, 17 US
at 429.
Under the stated facts, the federal officials designated to
serve as members or directors of New York State public benefit
corporations are serving as officials of the federal government
rather than in their personal capacities. For example, the
United States Secretary of Transportation, who has been named as
an ex officio director of the Penn Station Redevelopment
Corporation, is appointed by the President, by and with the
advice and consent of the Senate. 49 USCA § 102(b). Through the
appointment process, the federal government has determined that
whoever is appointed as the Secretary of Transportation is
qualified to perform his or her duties. Therefore, under the
above cases the State of New York cannot impose additional
requirements upon the Secretary of Transportation, who is serving
in his/her federal capacity as a director of the Penn Station
Redevelopment Corporation. Accordingly, the State of New York
may not impose its financial disclosure requirement on federal

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officials, serving as members and/or directors of New York State
public benefit corporations, pursuant to their federal positions,
to monitor federal funds.1
In any event, it is unlikely that the financial disclosure
requirement of section 73-a was ever meant to encompass federal
officials serving in their federal capacity to monitor federal
funds. The requirement of financial disclosure, which is part of
the New York State Ethics in Government Act of 1987, was
instituted "in response to revelations of corruption in the
New York City and State government that arose in 1985 and 1986,
and the resulting public demand for increased scrutiny and
accountability of public officials". Tristram J. Coffin, The
New York State Ethics in Government Act of 1987: A Critical
Evaluation, 22 Columbia J.L. & Soc. Probs. 269, 270 (1989). The
requirement was designed to ensure that "New Yorkers [could] have
. . . confidence in the integrity of their public servants".
Public Papers of Governor Cuomo, January 1, 1989. Therefore,
federal officials serving as members or directors of New York
State public benefit corporations in their federal capacities do
not fall within the coverage of the Act as indicated by its
legislative history, nor could they be covered by the Act without
violating the principles of supremacy.
Moreover, the Public Officers Law specifically excludes
members or directors of multi-state authorities from the
financial disclosure requirement.2 This is a further indication
that New York never intended to impose its financial disclosure
requirement on federal officials, representing the federal
government as members and/or directors of New York State public
benefit corporations.
We conclude that the State of New York may not impose its
requirement of financial disclosure on federal officials serving
1

We note that the federal government has a financial disclosure
filing requirement that probably would apply to these officials
which is similar to the filing required by Public Officers Law
§ 73-a. See, 5 USCA App 4 §§ 101, et seq. Copies of these
reports are readily available upon request. 5 USCA App 4
§ 105(b)(1).
2

We do not address whether New York State public benefit
corporations which designate federal officials as members or
directors may be considered "multi-state authorities", thereby
falling within the statutory exclusion of Public Officers Law
§ 73-a(1)(c)(iii).

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as members or directors of New York State public benefit
corporations in their federal capacities to monitor federal
funds, even though these officials have been deemed "policy
makers". Accordingly, such federal officials are not required to
file financial disclosure statements.
Very truly yours,

DENNIS C. VACCO
Attorney General