HON. FRANK A. GULOTTA Justice of the Supreme Court, Appellate Division Second Department
You have requested my opinion as to whether or not members of the Joint Bar Association Grievance Committees in the Appellate Division, Second Department, are employees or officers of the State with respect to the application of section 17 of the Public Officers Law.
You state that there are three such committees in the department each of which is composed of 15 members. The committees are appointed pursuant to 20 NYCRR 691 upon recommendation of the county bar associations and are charged with the duty and power to investigate matters involving provisional misconduct by attorneys. They are not compensated for their services. The authority for the cited regulation appears to be section90 of the Judiciary Law.
The compensation or lack of compensation of an individual is not dispositive of the question of whether he or she is an "officer or employee" of the State. It is "the actual facts of the relationship rather than the name or form given to it", which is determinative (1975 Op. Atty. Gen. 59). In an opinion to the Commissioner of Health (September 28, 1977), I expressed the view that people who serve the State without compensation, who are not treated as employees for the purposes of payroll and employee benefits, and whose service is "intermittent and advisory, and performed primarily out of a sense of public duty, rather than for personal gain", could not be considered to fall within the coverage of Public Officers Law, § 17.
Although the committees which were the subject of the above-cited opinion to the Department of Health serve a purely advisory function, while the committees about which you inquire are empowered to investigate and prosecute matters within their jurisdiction, this difference does not appear to dictate a different conclusion.
There are provisions in various statutes (e.g. Public Health Law, § 14a, Mental Hygiene Law, § 9.11) applicable to volunteers in particular departments of government, which provide benefits similar to Public Officers Law, § 17.
While the existence of these provisions reinforces my conclusion that the committee members to whom you refer do not fall within the protection of Public Officers Law, § 17, it also suggests that the benefits could be made available to them by other appropriate legislation.